Posts Tagged ‘Bittorrent’

The AF Holdings v Patel (GAND 12-cv-00262) Show Cause Hearing, which was abruptly interrupted by a snowstorm on the 1/28/2014 afternoon, was finally continued and concluded almost ten months later, on 11/20/2014. I was not there — Kat was, and she wrote a detailed and vivid three-part story. It doesn’t make sense to retell it in my own words: firstly, as I said, I was not there; second, Kat is simply a terrific storyteller, so pour yourself a glass of wine and read:

 

While we are waiting for the written order, the minute sheet is worth mentioning: in part because

The Court verbally adopted as part of its Findings of Fact and Conclusions of Law, Judge Wright’s Order, Central District of California, paragraphs, 1, 2, 3, 4, 5, 6, 8, 9 & 11¹. (See Wright Order 2:12-cv-8333-CDW).

 

I’ll copy and paste the adopted paragraphs for your convenience:

1. Steele, Hansmeier, and Duffy (“Principals”) are attorneys with shattered law practices. Seeking easy money, they conspired to operate this enterprise and formed the AF Holdings and Ingenuity 13 entities (among other fungible entities) for the sole purpose of litigating copyright-infringement lawsuits. They created these entities to shield the Principals from potential liability and to give an appearance of legitimacy.

2. AF Holdings and Ingenuity 13 have no assets other than several copyrights to pornographic movies. There are no official owners or officers for these two offshore entities, but the Principals are the de facto owners and officers.

3. The Principals started their copyright-enforcement crusade in about 2010, through Prenda Law, which was also owned and controlled by the Principals. Their litigation strategy consisted of monitoring BitTorrent download activity of their copyrighted pornographic movies, recording IP addresses of the computers downloading the movies, filing suit in federal court to subpoena Internet Service Providers (“ISPs”) for the identity of the subscribers to these IP addresses, and sending cease-and-desist letters to the subscribers, offering to settle each copyright infringement claim for about $4,000.

4. This nationwide strategy was highly successful because of statutory copyright damages, the pornographic subject matter, and the high cost of litigation. Most defendants settled with the Principals, resulting in proceeds of millions of dollars due to the numerosity of defendants. These settlement funds resided in the Principals’ accounts and not in accounts belonging to AF Holdings or Ingenuity 13.

No taxes have been paid on this income.

5. For defendants that refused to settle, the Principals engaged in vexatious litigation designed to coerce settlement. These lawsuits were filed using boilerplate complaints based on a modicum of evidence, calculated to maximize settlement profits by minimizing costs and effort.

6. The Principals have shown little desire to proceed in these lawsuits when faced with a determined defendant. Instead of litigating, they dismiss the case. When pressed for discovery, the Principals offer only disinformation—even to the Court.

8. The Principals maintained full control over the entire copyright-litigation operation. The Principals dictated the strategy to employ in each case, ordered their hired lawyers and witnesses to provide disinformation about the cases and the nature of their operation, and possessed all financial interests in the outcome of each case.

9. The Principals stole the identity of Alan Cooper (of 2170 Highway 47 North, Isle, MN 56342). The Principals fraudulently signed the copyright assignment for “Popular Demand” using Alan Cooper’s signature without his authorization, holding him out to be an officer of AF Holdings. Alan Cooper is not an officer of AF Holdings and has no affiliation with Plaintiffs other than his employment as a groundskeeper for Steele. There is no other person named Alan Cooper related to AF Holdings or Ingenuity 13.

11. Plaintiffs have demonstrated their willingness to deceive not just this Court, but other courts where they have appeared. Plaintiffs’ representations about their operations, relationships, and financial interests have varied from feigned ignorance to misstatements to outright lies. But this deception was calculated so that the Court would grant Plaintiffs’ early-discovery requests, thereby allowing Plaintiffs to identify defendants and exact settlement proceeds from them. With these granted requests, Plaintiffs borrow the authority of the Court to pressure settlement.

Brett Gibbs Paul Duffy Adam Urbanzcyk John Steele Paul Hansmeier Mark Lutz Yo momma...

 


¹ The paragraphs 7 and 10 deal with Brett Gibbs’s conduct, and were not adopted by Judge O’Kelley simply because they are irrelevant for this case.

I was astonished to find out that a teen pornography purveyor and the most litigious copyright troll in the US history Malibu Media filed 25 lawsuits in NYSD on 11/7/2014 and 11/10/2014 for the first time in more than two years.

Jacqueline M. James
Porn troll Jacquline M. James

The local troll is a solo practitioner from White Plains Jacquline M. James. I didn’t find any reputational hiccups in her career, which suggests that she was simply lazy to do a diligent research before stepping into this pile of manure. I’m willing to give her a benefit of doubt: let us see if she is willing to correct her mistake.

This move is bold and astonishing because historically New York has not been exactly friendly to trolls. Lipscomb and Co tried to shake down this state’s citizens in the past — only to be admonished by judges here and there.

The most important event was Magistrate Brown’s Order, Report and Recommendation that essentially ended mass extortion lawsuits in this state in 2012. Granted, Lipscomb ceased filing mass Doe suits long time ago, but the extortionate nature of his today’s “business” remains unchanged.

Other copyright trolls (Mike Meier, Marc Randazza) didn’t find much love in New York either. Judge Harold Baer called trolls “copyright locusts [that] have descended on the federal courts.” And Judge Victor Marrero even suggested that pornography may not be entitled to copyright protection.

So, it will be interesting to observe New York judges’ reaction to the return of the infamous porn troll.

Below is one of the cookie cutter complaints written either in the Miami Troll Central or Karlsruhe.

 

Dear trolls, today is the Veterans Day. In case you have a quantum of soul not eaten by the greed cancer yet, it’s time to reflect on your conduct. Our fathers didn’t die so you would make dirty money on selling US citizens to the German Mafia over obscene material.

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

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

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

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

Blackmail

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

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

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

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

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

 

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

 

Nicoletti
Porn troll Paul Nicoletti

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

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

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

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

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

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

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

Where are you, Mr. Lutz Paige?

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

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

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

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

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

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

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

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

 

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

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

Update

10/6/2014

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

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

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

Followup

11/17/2014

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

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

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

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

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

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

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

Just look at this:

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

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

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

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


Copyright troll Yousef Faroniya
is looking at the phone with fear

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

And finally,

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

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

 

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

The settlement demand:

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

…was met with a counter-offer:

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

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

Update

9/29/2014

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

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

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

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

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

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

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

 

Update 2

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

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

Sounds familiar?

On Friday I received an email from my registrar (yes, you read it correctly: my registrar, not my host) about a DMCA notice from a former copyright weretroll Mike Meier, who apparently sent it in order to remove my (and Raul’s) critical posts about him (the entire tag).

I initially didn’t want to publicize this idiotism (as you will see in my email to Meier below), but our friends at ExtortionLetterInfo (ELI) have already published a nearly identical missive that Mike Meier sent to their registrar, so I can break my “courtesy promise” and embed this example of a big league lawyering for your enjoyment.

But first, my Saturday’s reply:

Mr. Meier,

“The first rule of holes, according to an old saying, is to stop digging,”
Chief Judge Diane Wood (7th Circuit Court of Appeals)

 

You are not new to abusing the copyright law, I’m rather annoyed than surprised by your frivolous DMCA takedown attempt to suppress criticism (ironically, of your abuse of the copyright law).

On the merits, your request doesn’t hold any water:

  1. You target a registrar claiming that it “hosts” the pages in question, which is false: internet.bs does not host a single byte of my site. If you don’t know a difference between a host and a registrar, you should ask your teenage neighbor.
  2. Your libel claim is a de-facto admission of an attempt to abuse the DMCA process, and any defamation claim is moot, because:
    • It is irrelevant to a DMCA claim.
    • “Libel”: you keep using that word, I do not think it means what you think it means (i.e. a false statement of fact vs. an opinion).
    • The articles in question are old and beyond any statutory limits for conceiving any legal action (which would fail even then).
  3. The screenshot in question is a textbook example of fair use, backed by overwhelming case law.

 

I’m tempted to publicize your cowardly, unprofessional action, but want to give you a chance to stop and think about the consequences. My blog is pretty popular (~3,000,000 page hits so far), and I’m 100% sure that the tech media will notice and propel your ill-conceived action to the top of the Google search results — an outcome diametrically opposite to what your censorious ass hopes to achieve. I urge you to meditate on the Wikipedia article about the Streisand Effect before making a mistake of proceeding to dig the hole.

Any further action on your part will result in an immediate publicity.

Hope not to hear from you again.

SJD

…and now the notice:

 

As Matthew Chan has noticed, Meier’s “professional” website internationallawgroup.com does not list any attorney profile, yet one can spot the picture of Meier’s longtime colleague Terik Hashmi, a disgraced troll who was caught practicing law in Florida without license (which is a felony in FL) two years ago.

I feel a bit sad about this misguided individual, since his statement that 30% of identified IP addresses don’t lead to the infringer slowed down US trolling operations significantly.

I wash my hands: the ball is now in Barbara Streisand’s court.

 

Update

8/26/2014

Mike Meier is not new to frivolous threats even outside the porn trolling. Three years ago, in Preiss et al v. S & R Production Company et al (NVD 10-cv-01795) he was sanctioned by the court in the amount of $37,415.00 under 28 U.S.C. § 1927 (emphasis is mine):

Because of the baselessness of Plaintiffs opposition to the NIED and Title VII claims and the motion to remand, and because of the subjective bad faith demonstrated by Plaintiffs arguments and method of litigating this case, the Court awards attorneys’ fees to Defendants.

In the footnote the judge corroborated on the “bad faith” part (again, emphasis is mine):

The Court refers to Plaintiffs use of thinly veiled threats (Dkt. #36, Ex. F, email from Mike Meier dated July 30, 2010; Ex. G, email from Mike Meier dated June 4, 2010), use of tabloid media to pressure Defendants (id., Ex. D, National Enquirer article), dishonesty with this Court (compare id., Ex. C, offer to settle for $500,000, with Dkt. #38, Opp. at 8:6-7 (Mr. Meier’s communications do not discuss any dollar amount”), Plaintiffs continued arguments that they managed to deprive this Court of jurisdiction over this case, and other conduct as described in Defendants motion and accompanying exhibits.

Note that the order explicitly specified “Plaintiff’s counsel” rather than “Plaintiff” as the sanctioned party. Mr. Meier appealed this decision but lost.


There is more. As Ken White noticed, in October 2013 Mike Meier was publicly reprimanded by the Virginia State Bar Disciplinary Board for what I think should be a ground for disbarment and trigger DOJ interest. While pursuing a noble case — suing an immigration scam artist on behalf of one of the victims (Hyundai) — Meier approached the said scammer (Yoon and Empower) with a dubious (to put it mildly) settlement offer:

15. […] Respondent [Mike Meier] made a settlement proposal whereby Yoon and Empower would pay Hyundai the sum of $1,300,000,00.

16. Respondent proposed that Yoon and Empower file a Motion for Summary Judgment with the trial court.

17. Respondent further offered that in consideration of the payment of Hyundai, he would respond to the motion by withholding from the court his expert witness testimony, and would otherwise not mount a defense· to the Summary Judgment Motion.

18. Respondent also stated he would not share the allegedly incriminating documents he used in the deposition with the authorities investigating the criminal matters.

19. Respondent suggested that by not contesting the summary judgment motion the court would enter summary judgment in favor of Yoon and Empower.

20. The effect of the summary judgment would be to discourage other parties from bringing suit and create a chilling effect on the criminal investigations.

The board found that Meier violated the Rule 3.3 (Candor Toward The Tribunal).

Media coverage
  • TorrentFreak: Anti-Piracy lawyer Wants Domain Registrar to Silence Critics
  • TechDirt: Copyright Trolling Lawyer Abusing DMCA To Try To Silence Critics
  • BoingBoing: Copyright troll abuses DMCA in bid to censor his previous life as a troll-fighter

    I love when Cory Doctorow is pissed at scumbags and doesn’t mince words:

    The DMCA allows people who believe their copyrights have been infringed to demand that web-hosts remove the offending material, but imposes no duty on registrars. And copyright law has a broad fair use exemption for criticism, into which the screenshots in question unequivocally fall. What’s more, the DMCA does not offer any special privileges to people who believe that they have been libeled, and another law, the Communications Decency Act, immunizes webhosts and other intermediaries for libelous speech by their users.

    All of which Meier should know, if he is practicing Internet law. In my opinion, an Internet lawyer who claims not to know this is like a taxi driver who claims she doesn’t know what a traffic-light means. I believe it’s far more damning than merely being a money-seeking, amoral opportunist who changes sides to chase a buck — I believe it is prima facie evidence of legal incompetence.

  • Consumerist: Copyright Troll Lawyer Doesn’t Seem To Understand Copyright Law
  • Popehat: Attorney Mike Meier Meets The Streisand Effect, Does Not Enjoy Experience

    But Mike Meier’s legal threat was not foolish just because it exposed his behavior to more readers. It was foolish because it exposed him widely as a fool. People hire lawyers they trust. They want to be able to rely upon their lawyer’s advice, and to make difficult decisions based upon that advice. But who would trust the advice of a lawyer who would engage in a legal tactic that is so foreseeably self-destructive? If Meier had sent the DMCA notices on behalf of a client, I would call it rank malpractice and tell his client to consider suing him. In 2014, minimal legal competence requires an attorney to anticipate and understand the Streisand Effect.

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

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

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

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

[…] you should counsel [your client] that when he loses, he will lose everything he owns and owe my clients hundreds of thousands of dollars. Mark these words, your client’s decision to reject a walk away will be the worst decision he will ever make.

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

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

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

 

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

I wish Francesco Ferreiro and his client to prevail.

Update

9/16/2014

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

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

 

Update 2

10/9/2014

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

You’re nothing but a pack of cards!

Lewis Carroll. Alice in Wonderland.

 

Lynn Hughes
Copyright bully
Keith A. Vogt

We have been eagerly waiting for today’s hearing in Judge Hughes’s chambers (Dallas Buyers Club v. Does 1-25, TXSD 14-cv-02218), after the judge curtly denied copyright troll Keith Vogt‘s (ostensibly via his local counsel Daniel R. Kirshbaum) attempt to postpone inevitable “prolonged tirades by the court.”

Alas, our anticipated Schadenfreude turned into disappointment: Vogt dismissed the lawsuit at the last moment. Not really a surprise: this type of behavior is a hallmark of a bully who is only capable of harassing those much weaker: when he encounters anyone who is stronger, it’s usually time for an emergency laundry.

Now, as you can imagine, Judge Hughes was not amused and issued a short order in his distinguished style. I’m sure you’ll enjoy it as I did:

 

Effectively, this judge just killed Bittorent lawsuits in the Southern District of Texas. You may say I’m a dreamer, but… is it really too much to hope that other judges ask a couple of simple questions before rubberstamping ex-parte discovery requests based on fraudulent declarations? This episode shows that trolls’ “litigation” is just a house of cards ready to be blown away with a slightest wind.

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

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

Protective order gamesmanship

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

This case wasn’t different:

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

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

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

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

One-way discovery

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

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

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

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

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

 

Where is the evidence?

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

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

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

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

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

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

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

 

Lynn Hughes
US Federal Judge
Lynn N. Hughes

Remember TXSD Judge Lynn Hughes? I wrote about his amazing bench-slapping of Prenda’s sloppy minion Douglas McIntyre two years ago:

The court is not an ex-girlfriend’s Facebook wall. All documents must be filed with the court, captioned, signed by counsel, and with service certified.

Later I wrote about this judge calling out Prenda’s abuse, ordering the troll to destroy putative defendants’ personal data they already got from the ISPs:

First Time has abused its opportunity for discovery. It has insufficiently cooperated with the court and now wants to abandon its claims without explanation.

It may not use the information it has received; it must destroy it.

So, you get the idea: if you lie about your real motives, if you pretend to be interested in bringing the case all the way to the jury trial (while inventing excuses for delays and extensions), if you are generally a dirtbag, you really don’t want your case to be assigned to Lynn Hughes.

Yet the behaviors I just described are the exact modus operandi of copyright trolls! Thus, I bet that Keith Vogt, a Chicago-based sleazeball, who filed a champertous lawsuit Dallas Buyers Club v. Does 1-25 (TXSD 14-cv-02218) on 8/2/2014, is not happy to find out that he must face Hughes soon.

The judge doesn’t mince words: right after the case was assigned to him, he issued a short order outlining what our poor troll should expect. The service must be accomplished in 60 days, and the judge expects all the parties to appear for an initial pretrial conference on 11/3/2014 (I hope, Hughes will require personal attendance). Yet the most hilarious line is #8:

Failure to comply with this order may result in sanctions, including dismissal, and prolonged tirades by the court,

which I really hope will happen if Vogt is stupid enough not to run away at once.

 

Crystal Bay Corporation, seriously?

Vogt and his German employers don’t have any sense of reality. In his declaration (which is a sole basis of ex parte discovery), plaintiff’s purported expert, Guardaley’s Daniel Macek, claims that he works for Crystal Bay Corporation. In an ongoing troll disaster Elf-Man v Lamberson (WAED 13-cv-00395), defense attorney Chris Lynch thoroughly proved that this “corporation” is a pure fraud, a shelf entity created by a disbarred attorney in South Dakota. This fake corporation also “employs” Guardaley’s own incarnation of Alan Cooper’s ghost — Darren M. Griffin, a mysterious dude, whose existence is reasonably questioned.

The Troll Center knows about these developments, yet nonetheless an army of US parasitic lawyers continue impudently defrauding US courts. It won’t end well for them. I hope that one of the Does in the instant case will explain to Judge Hughes what is really going on in his courtroom.

110 E Center St Ste 2053, Madison, South Dakota 57042-2908
the address of a Guardaley’s shell, a fake company Crystal Bay Corporation

Update

8/8/2014

Hilarity continues. What can I say? Certain Vogt’s manly bits are undoubtedly busted:

Order to Amend

By 2:00 p.m. on August 8, 2014, Dallas Buyers Club, LLC, must amend its complaint to specify, as nearly as it can, by technical description or otherwise, the people whom it has sued. It must remove all mention of “Does” or similar fictions.

 

So, our poor troll with a little soul did exactly what the judge told him not to do: replaced one fiction (“Doe”) with another (bizarre “Internet User and Subscriber to IP address XX.XX.XX.XX located in Houston, Texas”). The bust is scheduled to August 12: I hope that “prolonged tirades” will be properly transcribed. Vogt will appear by telephone [update: I misunderstood it — Vogd was ordered to appear in person], and a local attorney named Daniel R. Kirshbaum will enjoy his own spanking in person.

Update 2

8/11/2014

Oh my… Local counsel cries he doesn’t know anything, and Vogt apparently soiled his pants: filed a second motion to reset hearing at the last moment (18:01). I’m sure Judge Hughes will be happy:

Plaintiff respectfully requests that the hearing set for August 12, 2014, at 3:30 p.m. be reset to anytime convenient to the Court between August 20, 2014 and August 22, 2014. Plaintiff’s counsel mistakenly believed that Mr. Keith A. Vogt would have been able to attend the hearing by telephone so as to full comply with Rule 4 of Judge Hughes’s Procedures.

The additional time will allow Mr. Vogt to make the necessary arrangements to attend the hearing. Plaintiff’s other counsel, Mr. Kirshbaum is acting solely as local counsel. Mr. Kirshbaum is not as knowledgeable as Mr. Vogt about the substantive issues in this matter, which the court may wish to address.

…and the motion was denied at 20:27.

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

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

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

Tonianne Bongiovanni
US Magistrate Judge
Tonianne Bongiovanni

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

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

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

Magistrate Tonianne Bongiovanni‘s concern is well articulated:

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

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

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