Posts Tagged ‘Brigham Field’

Judge Baylson issues Report on Bellwether Trial

Posted: June 19, 2013 by SJD in Bellwether trial, Lipscomb
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Today Judge Baylson published his Report on the Bellwether trial (Malibu Media, LLC v. John Does 1,6,13,14 and 16, PAED 12-cv-02078). Nothing is too unexpected. I’ll refrain from emotions, leaving my disgust with both “barely legal” pornography genre and copyright trolls for a later post and/or comments.

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

A couple of quick notes:

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

Reader’s comment: Shame on you Keith Lipscomb and shame on you X-Art

Posted: June 12, 2013 by SJD in Bellwether trial, Community contributions, Lipscomb
Tags: , , , , , , , , , , , , , ,
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I still can’t push myself to listen to the Bellwether trial audio recordings. While I’m procrastinating, some opinions began to emerge on the web, and the chorus of those opinions is not singing in unison:

 

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

 

By Anonymous

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

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

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

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

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

Two other things, on another note

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

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

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

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

It doesn’t. It never has.

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

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

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

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

Bellwether: essentially settled, it will be only a quick bench trial (no jury)

Posted: June 6, 2013 by SJD in Bellwether trial, Lipscomb
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Frustrating. Bellwether has lost its bell and is confusingly standing under the rain, a miserable castrated sheep that does not lead anyone anywhere anymore.

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

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

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

Notice:

 

Audio transcript of today’s hearing:

A better quality file is available via BitTorrent (magnet link). It will be the only source when my free mp3 host’s bandwith limit is reached (I’m afraid it will happen soon).

Update 6/10/2012: as of today, the audio above is temporarily not available, but DieTrollDie uploaded and linked a copy from his great post.

 

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

Update

6/10/2013

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

Bellwether trial is looming; Lipscomb’s weaselry continues

Posted: June 4, 2013 by SJD in Bellwether trial, Lipscomb
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The Bellwether Trial (Malibu Media, LLC v. John Does 1,6,13,14 and 16 — PAED 12-cv-02078), conceived by Judge Baylson with the goal of testing copyright trolls’ evidence, initially had five defendants. Only a single one “survived” to date: Doe 16, represented by attorney Ronald Smith. All the others did not withstand the pressure and settled. As far as I understand, the pressure was unprecedented: not surprising given that Lipscomb’s extortion “business” is at stake.

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

 

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

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

Let’s close our eyes to my sloppiness

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

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

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

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

The other requests

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

 

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

Media coverage
Update

6/6/2013

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

 

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

Winds of change begin to blow on Malibu Media

Posted: June 1, 2013 by SJD in Community contributions, Lipscomb
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by Dragon

The first time I read Judge Otis Wright II’s order issuing sanctions against Prenda et al, I knew I was witnessing history in the making. There were many times, in this blog and elsewhere in the community where Does expressed frustration that judges were simply not paying attention to the various infringement suits that were coming across their desks. It was an anomaly for a judge to question or put restrictions on discovery. While Prenda had everyone’s full attention in California, and justifiably so, Malibu Media took advantage of this fact with a landslide of lawsuits headed up by the weasel Keith Lipscomb and his “merry men.” As in the past, most of these lawsuits were granted discovery, which allowed Plaintiff the opportunity to “plunder the citizenry.” Then came May 6th. As word of Wright’s “proclamation” has begun to spread, judges are starting to lift their heads and pay attention to what is going on. Two particular districts in the past few days, where judges have looked beyond face value, have now taken an interesting turn.

Wisconsin

Magistrate Judge
Stephen L. Crocker

Three days ago, in the Western District of Wisconsin, Magistrate Judge Stephen L. Crocker, took a closer look at what was going on and decided it was time for “the court to go to battle stations.” He issued an order today that literally had me clapping and cheering (at work mind you) for his ability to get to the root of what is really going on with these suits. Malibu has filed 11 suits in his district, which even though he is well aware of the criticism levied against them, has “no problem” with plaintiff protecting its copyright or negotiating settlement, regardless of the content involved.

Now here’s where it gets interesting. You may recall in Malibu cases, that additional infringement is now being entered as exhibits (exhibit “C” to be precise¹) under the guise of asserting that the Doe is a “serial infringer.” This community had concerns about including infringement of works that did not belong to Plaintiff and clearly those concerns are shared by this Honorable Judge.

This is nonsensical. Complaints are pleadings, not affidavits, so they have no “evidentiary purpose.” Complaints are to provide “a short and plain statement of the claim showing that the pleader is entitled to relief.” F.R. Civ. Pro. 8(a)(2). Here, in each case, plaintiff is explicitly disavowing any claim based on Exhibit C. If it were to matter, under what rule of evidence would Exhibit C be relevant at any stage of this lawsuit? Propensity evidence is forbidden by F.R. Ev. 404(b)(1). Plaintiff makes no claim that Exhibit C is relevant under Rule 404(b)(2), and if it did, then the weighing process of Rule 403 would militate forcefully toward excluding this evidence. So what’s really going on here?

Well, we knew all along “what’s really going on here.” Slap down a complaint, coupled with 100 plus additionally alleged infringements, and you have now increased the chance of settlement exponentially. Trolls prey on FUD (fear, uncertainty, doubt) and these exhibits are one unhealthy dose of it. It’s no surprise that the average settlement amount in these particular cases is between 10 and 15 thousand dollars. Unfortunately for Malibu, Judge Crocker gets the joke; and he’s not laughing.

Even a cursory review of each lawsuit’s Exhibit C shows first, that it is always much, much longer than the short list of titles that is the actual subject of plaintiff’s lawsuit, and second, thatamong the innocuous titles listed in each Exhibit C (e.g., “Top Gear,” “Star Trek VI”) are numerous “adult” programs, usually many more than the handful for which plaintiff is claiming a copyright violation, and many with titles exponentially more lewd than any title claimed by plaintiff Compare “Red Satin”with“[Bestiality] Young Blonde . . . Dog (www.sickporn.in).” One needn’t be a cynic to suppose that an intended purpose–perhaps the primary purpose–of Exhibit C to the complaint in each of these lawsuits is to increase the pressure on a subsequently identified Doe defendant to settle before s/he is publicly linked to hardcore/deviant titles that are completely irrelevant to plaintiff’s actual claims in the lawsuit. If this is true–and right now it is the court’s operating hypothesis–then plaintiff probably has violated F.R. Civ. Pro. 11(b)(1). Nothing else is going to happen in these lawsuits until the court decides this matter.

 

Put another way, GAME OVER. He concludes by ordering all documents sealed, “to protect them from prying eyes” while the court is able to determine if these exhibits “should be stricken and whether plaintiff should be sanctioned” (emphasis added). Malibu now has to explain to the court what they were up to, or face sanctions.

 

Illinois

Moving on to the Central District of Illinois. Magistrate Judge Byron Cudmore has long been handling Malibu cases, essentially passing local counsel Mary K. Schultz the keys to discovery without so much as breaking a sweat. Currently, I count 38 cases pending in this district alone. While there isn’t a whole lot of detail to share yet, the following text was entered in each of these cases yesterday:


Chief District Judge
James E. Shadid

ORDER REASSIGNING CASE. Case reassigned to Chief Judge James E. Shadid and Magistrate Judge John A. Gorman for all further proceedings. Judge Michael M. Mihm, Magistrate Judge Byron G. Cudmore no longer assigned to case. All discovery and deadlines are stayed pending further order of the Court. Entered by Chief Judge James E. Shadid on 5/30/2013. (MC, ilcd) (Entered: 05/30/2013)

Again, while there isn’t much detail to relate with these particular suits, it is worth noting that the Order issued has taken the cases from Springfield, IL and placed them now in Peoria to be handled. That raises some eyebrows as to what exactly was happening in Springfield that caused the reassignment.

Along with the Bellwether trial, Malibu Media is finally starting to get some much deserved notice and it couldn’t have come sooner in my opinion. As the winds of change start to blow, hopefully more judges across the country will start to uncover the truth: the troll “business model” is alive and in full swing with Malibu Media.

Update

6/1/2013 (SJD)

According to RFC Express (which is buggy, so the numbers may be slightly off), orders reassigning cases and staying discovery have been filed in at least 21 cases². Strangely, exactly at the same date (5/30/2013) Malibu/Lipscomb/Schultz voluntarily dismissed without prejudice (example) at least 9 cases. Feeling the heat and running away like thieves caught pilfering cigarettes? All these cases feature “extended surveillance” Exhibit “C,” which I hope will serve as a ground for sanctions against Lipscomb and his gang — first in Wisconsin, then in other states. I urge all the named and unnamed defendants in all states file judicial notes attaching Judge Crocker’s order.

Followup

@SaltMarshGhost has posted an interesting analysis of recent events on the copyright trolling front, with big emphasis to Judge Crocker’s order and its possible impact. Below is the entire piece (I only linkified it).

The Copyright Troll Big Picture

@SaltMarshGhost
2013-06-01

Several big things have happened in the last month in the copyright troll world. First, Ingenuity 13 v. Doe, 12-cv-08333 (C.D. Cal.) has essentially ended (some drama regarding Klinedinst’s withdrawal notwithstanding). Several Prenda characters have filed appeals with the Ninth Circuit; those will not bring about any news until October, when their opening briefs are due (fans of schadenfreude, however, can look at In re: Hansmeier, in which Paul Hansmeier has to file a “status report” regarding his sanctions by July 14. Or perhaps he will not file one, and withdraw his application to the bar. Anything is possible with Prenda). Paul Duffy posted a bond to the district court, but will not motion to stay until June 24 (not sure why this is), so there won’t be any news out of the Central District of California for at least three weeks. The CAND 12-cv-02396 AF Holdings LLC v. Joe Navasca case was closed recently, to our dismay, with Judge Chen saying that Prenda had “substantially complied” with his order to produce the Salt Marsh signature by claiming to no longer have it (given my twitter handle, I am personally disappointed by this). Sunlust v. Nguyen in FLMD also ended unexpectedly, with Syfert withdrawing all sanctions motions, in an apparent deal.

But in this lull, M. Keith “don’t call me a pornographer” Lipscomb has been busy. As discussed above, Judge Crocker in W.D. Wisconsin warned Lipscomb that his now-infamous Exhibit C put him in serious jeopardy of sanctions under FRCP 11(b)(1). (Note that Judge Wright, before moving to inherent sanctions power, was considering sanctioning under FRCP 11(b)(3).)

The relevant paragraphs of FRCP 11:

(b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.

Wright’s assertion wrt FRCP 11(b)(3) was that Prenda did not sufficiently show that the Doe they were going after was actually the infringer; basically, that the IP address does not equal the infringer. While this is important, this isn’t actually central to the copyright trolling M.O. And his sanctions were not based on that at all; his sanctions were for Prenda’s asshattery with regards to their corporate structure, the Alan Cooper issue, etc. That’s where Judge Crocker comes in, and where Lipscomb has made a very, very bad mistake.

The primary component of the copyright troll’s M.O. is of course that a person who is accused of illegally downloading pornography will, much of the time, settle to prevent the news from being public. This smells of extortion, and Paul Duffy’s wife has admitted of Facebook to what amounts to inter-state extortion, according to Popehat. Where Lipscomb made a very bad mistake is in the so-called “Exhibit C”, which listed *other* works the Doe is accused of infringing, which appears to be nothing more than a print-out of the Bittorrent monitoring software and includes works that Malibu Media doesn’t even own the copyright to, such as real Hollywood movies. Crucially to Judge Crocker, it also includes several works with titles much cruder—and so more incriminating and more embarrassing—than used by X-Art. Judge Crocker finds this to be in violation of FRCP 11(b)(1).

This could be a crucial step in the dismantling of the copyright troll business. Judge Wright’s sanctions on Prenda, if upheld by the Ninth Circuit, would destroy Prenda but leave Lipscomb and other trolls intact. The broadest effect it might have is tilting other jurisdictions toward adopting an IP-address-is-not-the-infringer doctrine, due to Wright’s findings of fact. A finding that Lipscomb violated FRCP 11(b)(1), on the other hand, would strike at the heart of the copyright troll business model by saying that *filing a porn lawsuit based on trying to get somebody to settle to keep it out of the public eye* is legally-unacceptable harassment.

There is, however, one caveat—Judge Crocker seems to be interested in Exhibit C specifically. This leaves room for suits where the troll is not so stupid as Lipscomb and files a suit against a single, named Doe, for a single work. My understanding is that Lipscomb/Malibu are leaning toward this angle. (See Cashman on this.) If Crocker rules broadly and says that even that would violate FRCP 11(b)(1), then porn copyright trolls are all absolutely dead. If not, then Lipscomb/Malibu Media need to be watched very closely.

What with this and the talk of “copyright small claims” by Judge Titus in Maryland, the post-Prenda era (fingers crossed) still remains an exciting time for copyright troll watching.

 

¹The linked exhibit is from a different case: the complaint and all exhibits in this case are sealed per judge’s order embedded above. Yet it is perfect as an illustration: all such exhibits are essentially the same, only filenames differ.

²ILCD Malibu Media cases stayed and reassigned:

  • 2:13-cv-02096-HAB-DGB (dismissed)
  • 2:13-cv-02097-HAB-DGB (dismissed)
  • 2:13-cv-02094-HAB-DGB (dismissed)
  • 2:13-cv-02093-HAB-DGB (dismissed)
  • 2:13-cv-02059-MPM-DGB (dismissed)
  • 2:13-cv-02044-MPM-DGB (dismissed)
  • 2:13-cv-02058-HAB-DGB (dismissed)
  • 1:13-cv-01073-JES-JAG (dismissed)
  • 1:13-cv-01200-MMM-BGC
  • 1:13-cv-01201-JES-JAG
  • 3:13-cv-03116-RM-BGC
  • 3:13-cv-03118-RM-BGC
  • 3:13-cv-03119-RM-BGC
  • 1:13-cv-01194-JBM-BGC
  • 1:13-cv-01195-JBM-JAG
  • 1:13-cv-01189-JES-JAG
  • 1:13-cv-01096-JBM-BGC
  • 1:13-cv-01075-JES-JAG
  • 3:13-cv-03044-SEM-BGC
  • 1:13-cv-01074-JES-BGC
  • 1:12-cv-01493-JES-JAG
  • 1:13-cv-01102-JES-JAG

Indiana attorney Paul Overhauser tells judge about the real ugly face of troll Nicoletti, requests a $500,000 bond to be posted

Posted: May 24, 2013 by SJD in Lipscomb
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X-Art

Malibu Media v. Andrew Leightner et al (INSD 12-cv-00845) is a long and eventful lawsuit, one of 866 extortion cases filed by copyright troll Lipscomb’s outfit on behalf of Malibu Media¹. “Malibu Media” is an alternative name of a hardcore pornography producer X-Art owned by Brigham Field and Colette Pelissier. This “company,” Malibu Media, was created by Keith Lipscomb and jaded, soulless pornographers with a sole goal of robbing US citizens of their savings. This plaintiff is involved in a closely watched Bellwether trial in Pennsylvania.

In Indiana (as well as in Illinois and Michigan) Lipscomb’s local lackey is a Michigan attorney Paul Nicoletti, a sleazy opportunist with a very questionable past (explained below). Well, while I doubt that any attorney in the trolling business has a slightest idea what dignity is, Nicoletti is apparently on the very bottom of the list sorted by scumbaggery: only Prenda’s attorneys would proudly occupy the space below him.

It would be a Herculean task to overview the history of this case, which already amassed 194 documents. I want to concentrate only on this week’s events.

Judge: You cannot silence the opposing counsel, especially without presenting any evidence

Attorney Paul Overhouser represents two defendants in this case (out of eight defendants in Indiana Lipscomb’s cases). Apparently, earlier this week Paul communicated to Nicoletti that there would be a motion containing something incriminating him. Trying to prevent it, panicking Nicoletti requested an emergency phone conference in every case where Overhouser has been representing defendants:

Plaintiff has recently been informed by counsel for Defendants Chris Minor and Teresa Stephenson that he intends to file certain documents with the Court. The proposed documents are not relevant to this case. The documents are solely intended to embarrass undersigned. Defendant is threatening to file the offensive documents so that he may gain an unfair advantage in this litigation in violation of Fed. R. Civ. P. 11, 28 U.S.C. § 1927, and possibly one or more bar rules.

Nicoletti
Magistrate Judge
Mark J. Dismore

Well, Nicoletti forgot that this country is governed by the US Constitution, particularly the First Amendment, which preempts his silly “arguments.” Fortunately, Judge Mark Dinsmore² did not forget about it and denied this disingenuous request outright:

Plaintiff’s motion seeks a telephone conference to discuss certain material that may be filed by counsel for Defendant and to “enjoin Defendant from filing any papers that could be construed as embarrassing to undersigned counsel until after such hearing.” First, any sort of injunction on the filing of motions or other documents, particularly in the entirely abstract scenario presented by the Plaintiff by this motion, could well constitute an impermissible prior restraint upon Defendant’s free speech rights. However, more fundamentally, until demonstrated otherwise, the Court assumes that all counsel that appear before it are aware of and endeavor to comply with the relevant rules, decisions and statutes that govern their conduct before the Court. To grant Plaintiff’s motion would be to presume, in the absence of any evidence, Defendant’s counsel’s intent to not comply with such rules, decisions and statutes. The Court does and must expect such compliance and, if any counsel fails in that duty, can then exercise the full extent of its authority to punish such failure. But an invitation to presume and/or enjoin such non-compliance in the absence of any evidence thereof is an invitation the Court cannot accept. Accordingly, Plaintiff’s motion must be DENIED.

A powerful motion

I hope that you will agree with me that Nicoletti’s fear was not unfounded. Today the promised motion (to require plaintiff to post a bond) was filed by Overhouser.

The requested bond size may sound shocking: half a million dollars ($250,000 per defendant), but if you read along, you will understand why: Lipscomb’s main enemy is his narcissism (not much different from John Steele’s):

Malibu’s attorneys acknowledge that “the average cost of copyright litigation is 600K through trial,” and this should be a factor in resolving cases:

[From Lipscomb’s email to Brad Partick — I mentioned this disgusting email last year]

[...]Toward that end, you should also apprise your clients that the average cost of a copyright litigation is 600K through trial, according to AIPLA survey of fees in IP cases. This is a relatively simple case, but the fees will the nevertheless be substantial and indubitably in the 6 figures.

Arguing why such bond is necessary, Overhauser brings the most damning topics:

 

In addition to arguing that the bond is necessary in this particular lawsuit’s needs, Overhouser urges the court to grant the bond for an additional reason — to deter future extortionate activities by Lipscomb and other trolls:

In exercising its “wide” discretion, the Court should also consider that frivolous litigation brought by intellectual property “trolls” is a growing societal problem that burdens the judiciary.

[...]

Requiring a Plaintiff like Malibu to post a bond for possible defense costs early in the case will deter it and other Plaintiffs who attempt to “outmaneuver the legal system” and “plunder the citizenry.”

Concluding, Overhouser asks the court for something that would stop this type of lawsuit abuse in Indiana for good:

If this motion is granted, Defendants also invite the Court to consider entering Orders to Show Cause why Defendants [sic: should be Plaintiffs] should not be required to post bond in the other cases filed by Mr. Nicoletti in Indiana (Exhibit 11).

This motion is not long, well written and powerful. Enjoy:

One simply cannot cease being a crook
Nicoletti
Copyright troll Paul Nicoletti

There are 14 exhibits, the majority of which are rulings and pleading from other cases. The new one is #13 — a list of cases involving Paul Nicoletti, which also includes multiple sanctions levied against him plus other documents supporting the simple truth that Nicoletti desperately tried to hide from the world: this “attorney” is one of the sleaziest and most despicable human beings.

 


(Because Scribd incorrectly renders PDF highlights, I removed all the highlights in the embedded document: the original is here.)

Thanks to Raul for contributing to this article.

 

¹1,129 together with the second Lipscomb’s favorite pornographer Patrick Collins.

²Involvement of Judge Dinsmore is heartwarming. If you read this scheduling order from another case, you will understand why.

Bellwether trial update: How NOT to prepare for trial

Posted: May 5, 2013 by Raul in Bellwether trial, Lipscomb
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“You cannot escape the responsibility of tomorrow by evading it today.”
Abraham Lincoln

 

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

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

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

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

 

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

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

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

Furthermore defense counsel underlines what by now is obvious:

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

 

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

Attorney, who has been bastardizing the litigation process for years, gets offended by the word “bastardize”

Posted: February 5, 2013 by SJD in Uncategorized, Lipscomb
Tags: , , , , , , , , , , , , , , , ,
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While I was concentrating on John Steele’s outfit, I’m afraid other trolls have been feeling neglected, especially a mega villain Keith Lipscomb. To rehabilitate myself, I looked into my backlog and found this gem.

Back in November, in a slow-moving class action lawsuit (Jennifer Barker and Sabree Hutchinson v. Copyright Trolls, KYWD 12-cv-00372), plaintiffs’ attorney Kenneth Henry used a pretty mild description of what Keith Lipscomb and his gang have been doing for about two years:

To bastardize the litigation process and abuse the court system as the Defendants have done, and now to object to the taking of early discovery vis-à-vis their claim that this Court lacks personal jurisdiction over them is yet another display of the Defendants’ total disregard for the courts and the rights of those with whom they deal.

In my (and not only my) opinion, Mr. Lipscomb’s “business” is better described as an extortion racket rather than a mere “bastardization of the litigation process.” Yet Lipscomb took an offense and demanded to strike that reasonable assessment from Henry’s motion:

Plaintiffs repeated accusations that Defendants are “bastardiz[ing] the litigation process” and have purposefully abused the court system in order to harass innocent individuals nationwide are baseless and unwarranted.

[...]

Accordingly, the language “bastardization of the litigation process” should be struck.

And this is not ironic enough: this man shakes down many thousands (a significant part of whom are innocent) over obscene material; his evidence is flimsy at best; and his fee-splitting agreements with porn purveyors and unlicensed foreign IP address harvesters are undeniably unethical. This man, in addition to having become furious over a dictionary word, was also offended when Henry called him “obviously not a Biblical scholar”:

[...] the first page of Plaintiffs’ reply exclaims, “[o]bviously, counsel for the Defendants are not Biblical scholars.” This is deeply offensive. Undersigned was raised a Christian, was active in Campus Life and Campus Crusade (now known as “Cru”) in high school and college respectively, and used undersigned’s only preemptory waiver to ensure enrollment in an always oversubscribed biblical law class while attending The Cornell Law School. Undersigned is currently a member in good standing of the First Presbyterian Church in Fort Lauderdale, Florida and is a regular attendee at services.

 

Here we are: an indefinitely greedy person who indiscriminately assaulted many elderly, poor and sick, a person who lies each time he opens his mouth, a coward who loves to spill his saliva threatening fellow attorneys, demonstrates that he has a thin skin in unexpected places.

It evades me how this man can reconcile his purported Christianity with the fact that the public in general reasonably thinks that copyright trolling is a labor of Satan. Maybe people of faith chime in and explain. Until then I cannot get rid of the vision of Lipscomb’s famous relative turning in his grave.

Question for the community

Given the passionate and articulate pleading embedded above, it seems that M. Keith Lipscomb manages to conflate two incompatible things: a Christian worldview and “theft via extortion” (a.k.a. porn copyright trolling). I meditated on this paradox and cannot think about but two explanations, unless I am totally wrong. What do you think?

Copyright troll M. Keith Lipscomb loses on home turf, traditionally troll-friendly Tampa court

Posted: December 7, 2012 by Raul in Community contributions, Lipscomb
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By Raul

Attorney M. Keith Lipscomb operates a nationwide copyright infringement lawsuit machine out of the offices of Lipscomb, Eisenberg & Baker, PL in Miami, Florida. It is widely assumed that he directs and oversees the operations of a small army of copyright troll attorneys who range from California to New York and terrorize United States citizens with their porn copyright infringement lawsuits which have been judicially declared “essentially an extortion scheme.” Indeed these copyright troll attorneys have been judicially compared to predatory locusts.

For Lipscomb the most fruitful judicial district to ply his predatory extortion racket has been the Federal District Court for the Middle District of Florida (FLMD). Since March of 2011 his law firm has filed countless porn copyright infringement lawsuits against countless “John Does” and has extracted millions of dollars in settlement monies (an educated guess, admittedly).

The reason for this is clear: the FLMD welcomes copyright troll lawsuits. Judges from this district have never refused Lipscomb’s motions to expedite discovery to ascertain the personal info of the “John Does” so they can be harassed into settlements. Likewise no judge from this district has granted a “John Doe” motion to sever the numerous “John Does” from the main lawsuit as is frequently granted in other judicial districts for a variety of reasons but which has the effect of dampening the explosion of these types of lawsuits. Accordingly as of today the FLMD hosts “83 copyright cases against 11,597 John Does”. So, you could say, things were going great for Lipscomb with the lawsuits going out one door and the settlements coming in another — until today.

James David Whittemore
U.S. District Judge
James David Whittemore

Thanks in no small part to the efforts of Cynthia Conlin, Esq., the Hon. James D. Whittmore granted her motion to sever in the lawsuit entitled Malibu Media v. John does 1-28 (12-cv-01667). Judge Whittmore’s Order read a lot like that of Judge Young of the District Court of Massachusetts in Third Degree Films v. Does 1-47 (MAD 12-cv-10761). In fact Conlin cited the MAD case as Supplemental Authority and Judge Whittemore cited it approvingly in his Order.

The Order itself approves of the copyright troll theory of “swarm joinder” which the judge notes has been disapproved of by many other federal justices. Nonetheless he moves on to grant severance on the ground that joinder of so many “John Does” violates Federal Rules of Civil Procedure 21 for essentially two reasons.

Reason One:

The likelihood of multiple unrelated motions and defenses leads to a conclusion that there are few, if any, litigation or judicial economies to be gained by joining these claims, notwithstanding the allegations that the Doe Defendants participated in the same swarm.

Reason Two:

By filing a single lawsuit against twenty-eight defendants, Malibu has paid only $350 in filing fees, rather than the $9,800 it would have paid if the lawsuits had been brought separately.

The judge notes that filing fees provide a “threshold barrier” against the filing of meritless or frivolous lawsuits which he finds is an appropriate reason for Malibu Media to start filing separate lawsuits. Additionally the judge observes that:

By filing multi-defendant complaints, Malibu’s lawsuits have deprived the court of hundreds of thousands of dollars in much needed revenue, while burdening the docket with cases that are difficult to manage, in the traditional sense, without extraordinary judicial time and labor. Severance will enable efficient management of each case, preserve the purpose of filing fees and protect the docket against problematic filing practices.

In conclusion the judge holds that:

Although joinder is permissive under Rule 20(a)(2), concerns of fairness, prejudice, expedience, cost, practicality, and case management warrant severance of the individual claims.

We can only hope that other justices of the FLMD will see the wisdom of this approach and follow suit.

12/07 Cynthia Conlin comments:

Raul, this is an awesome post! Thank you for the credit but I need to make a correction. Although I did file a motion in the case for one of the Does (my Doe is #7 in this case), the first motion filed, and the one that was granted, in this case was by Attorney Michael Savage, who practices out of Punta Gorda, Florida. He filed the motion on behalf of Doe No. 2. Also, I think that Whittemore considered not only the motions in this case, however, but also motions filed in other Middle District cases from William Wohlsifer (Tallahassee), Daniel Simon (Miami), Daniel Tamaroff (Miami), Graham W. Syfert (Jacksonville), as well as myself — we’ve all been filing a TON of motions in the Middle District of Florida, and Whittemore has been seeing these cases for many months now. This order was a long time coming, and I can tell he and his law clerks put lot of thought was put into it.

 

Happy Holiday Season to All!

 

     Substitute Lipscomb for Old Grinch:

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.

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