Déjà vu all over again
Remember how copyright troll M. Keith Lipscomb, after finding out beyond any reasonable and unreasonable doubt that a defendant in a Malibu Media Bittorent infringement case is absolutely innocent, threatened to ruin his life nonetheless? Today we witness a painfully similar scenario: after the defendant in Malibu Media v. Roberto Roldan (FLMD 13-cv-03007) filed an alibi-grade proof that he couldn’t have been an infringer, Lipscomb & Co doubled down in a futile attempt to save face and avoid paying attorney fees.
This case was conceived on 11/27/2013. In the complaint, Malibu claimed the infringement of 40 XArt’s hardcore porn flicks¹. After Brighthouse sold its subscriber’ identity to the troll, Lipscomb decided to name not the subscriber, but his son. Why? Because he is a young male and because he liked some popular music and movies on Facebook — the titles that were allegedly shared using the IP address in question. In addition, the LexisNexis’s Accurint database [incorrectly] listed the defendant as a tenant in his parents’ house at the dates the alleged infringement was recorded².
In numerous Bittorent cases defense attorneys and judges questioned the trolls’ practice to cavalierly name subscribers or their family members as defendants without the diligence required by the Rule 11 of the F.R.C.P. I do not debate that in many instances trolls’ assumptions are correct; yet the lack of candor inevitably results in mistakes (just like in this case), and given the sheer amount of the shakedown cases being filed today, this is not an isolated incident.
On 8/15/2014 defendant’s attorney, Cynthia Conlin, filed the answer to the complaint. The answer contained 19 affirmative defenses, all of them strong; the majority of these arguments have been discussed on this site in one form or another. Yet for the purpose of this story I’ll concentrate on the following one:
Defendant has not infringed Plaintiff’s work as alleged in Plaintiff’s complaint, nor has Defendant even attempted to download Plaintiff’s work. Defendant is not the account holder associated with the I.P. address, nor does he live at the address associated with the I.P. address.
We’ll get back to this statement shortly.
This case was nearly dormant till January, when the defendant filed a bombshell motion for summary judgment on 1/19/2015, presenting tons of evidence that he couldn’t use his parents’ network at the times the alleged file-sharing was initiated:
(Also see the affidavit of Roberto Roldan)
As you can see, the proof of the defendant not being involved in sharing XArt’s smut is overwhelming and conforms not only to the relaxed “preponderance of evidence” civil standard, but to a much more stringent “beyond the reasonable doubt.”
The troll doubles down
So what did Lipscomb do? You’d expect a voluntary dismissal of this unwinnable case with prejudice — in order to acknowledge the mistake and move to shaking down the next victim. Wishful thinking! Just like in Pelizzo, Lipscomb (or, more precisely, his hubris) doubles down and files an opposition where he… accuses the defendant and his counsel of “ambushing” the troll with the proof of innocence:
Plaintiff Did Not Know Defendant Resided in Tampa Until Defendant Produced Discovery Documents — Months After the Lawsuit Commenced
Plaintiff cannot understand why Defendant would wait so long, and allow a lawsuit to proceed for months, if he was innocent and could have ended it against him nearly a year ago. Defendant must have been aware of Plaintiff’s intention to name him in the lawsuit when Plaintiff tried to serve him at his parents’ house in April.
As I stated above, in his answer the defendant explicitly stated that he did not live at the address, and it was not the only time this information was communicated to the plaintiff. So the statement that “Plaintiff did not know…” is dishonest, to put it mildly.
Also, accusing the defense of a delay is beyond disingenuous: almost every Malibu case is being delayed for months without a valid reason — by the plaintiff.
Seemingly, Lipscomb can’t believe that the “impeccable methodology” employed by the Germans could possibly be prone to false positives:
Indeed, Plaintiff did not pick Defendant out of thin air — there is a link between him and the infringement.
I somewhat agree: these cases are pulled not out of thin air. There is a plenty of more appropriate places — abundantly depicted in the plaintiff’s “works of art” — to pull these cases from.