Posts Tagged ‘Brigham Field’

This development in one of the porn trolling cases — Malibu Media v Gerald Shekoski (MIED 13-cv-12217) — is not too dramatic, yet interesting.

Defendant’s motion for protective order regarding his hard drive

This motion was filed on 7/2/14 by attorneys Derek W. Wilczynski and Lincoln G. Herweyer on behalf of the defendant who claims absolute innocence. While not opposing to his hard drive examination in principle, the defendant was justifiably concerned about possible fishing expedition to his sensitive data. The plaintiff (Keith Lipscomb / Paul Nicoletti) insists that the drive examination should be performed by its expert Patrick Paige, whose reputation was tainted by his sloppy (and maybe even deliberately biased) declaration in Malibu Media v. Kelley Tashiro (INSD 1:13-cv-00205). In addition, given the overall infamy of the shakedown artists, the defendant reasonably doesn’t trust that the forensic analysis will be performed honestly and that unrelated data found on the drive won’t be misused to press the defendant to settle:

From Defendant’s perspective, however, the procedure contemplated by Plaintiff is needlessly invasive and lacks adequate safeguards, among other problems. In truth, Defendant welcomes another opportunity to demonstrate that he did not engage in peer-to-peer file sharing of Plaintiff’s works, and fully expects that a forensic examination of his computer’s hard drive will bear witness to that fact.

[...]

Moreover, Defendant understandably distrusts the particular persons who want to subject his confidential information to such exacting scrutiny. Defendant does not have the resources to monitor Malibu or IPP (the German IT firm on whose work Plaintiff’s case is based) and hold them accountable should they violate the protective order contemplated by Plaintiff. Instead, Defendant would have to essentially trust them. Yet, pornographers with an industry-sized litigation practice of coercing settlements from blameless individuals do not instill the confidence necessary to such trust. Nor does a foreign IT company that may be a shell for a previously discredited firm instill such trust. While Plaintiff may be heard to shout its own bona fides, one must remember that Defendant knows that he did not infringe Plaintiff’s copyrights and, therefore, he knows that Plaintiff is the kind to sue innocent people and attempt (from his perspective) to extort money from them.

So, the defendant wants

[...] the moral equivalent of an in camera inspection of his computer’s hard drive, by using a licensed but neutral expert in computer forensics (paid for by Plaintiff) who can provide the information to both parties that is relevant to Plaintiff’s claims, but who will not otherwise divulge the contents of Defendant’s computer to Plaintiff or anyone else.

…and he wants a local expert, arguing that

[...] in Michigan those who engage in computer forensic investigations for a fee must be licensed, and doing so without a license is a felony punishable by up to four years in prison.

 

Order on this motion

US Federal Judge
Victoria A. Roberts

Today Judge Victoria A. Roberts ruled on this motion, and while she ordered to hand out the mirror of the defendant’s hard drive to Malibu/Paige, she agreed with the other safeguards that the defendant asked for (emphasis is mine):

Counsel for Malibu Media is to supply defense counsel with copies of protective orders entered in similar cases pending in this district, to be used as models in fashioning this protective order. As basic parameters, Defendant is to provide a mirror image of the hard drive at issue to Malibu Media, at Malibu’s expense, as soon as the terms of a protective order have been agreed upon. The protective order will specify the material that Malibu’s forensic expert is looking for; anything else on the hard drive is off limits for discovery purposes.

[...]

If the forensic 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.

 

Like the defendant, I do not trust anyone associated with Lipscomb’s division of Guardaley. Therefore I’m not confident that the crooks won’t find a way to maintain the lawsuit, ramping up the legal costs and increasing the pressure to settle, even if no evidence of infringement is found.

Nonetheless, this is a welcome development and good news amid the ongoing legal epidemic of copyright trolling. At least this defendant will avoid embarrassing questions about his purported porn habits, and his Internet bandwidth usage won’t be a subject to Orwellian insinuations.

Can granting a motion for default judgment be a benchslap at the same time? Apparently.

Seeing people punishing themselves by not replying to trolls’ accusations makes me sad, very sad. Fighting against a collection agency or US Marshals is orders of magnitude more difficult and painful than fighting against porn copyright trolls. Every month we witness more than one default judgment, and the awarded amounts are Kafkaesque: a yearly income worth of fines for allegedly sharing a bunch of cheap porno flicks is an insult to the US Constitution (I’m talking about the Eight Amendment).


US Federal Judge
Robert H. Cleland

Yet this time, reading Judge Robert H. Cleland’s order issued back in October 2013 (Malibu Media LLC v. Lara Dupius, MIED 13-cv-11435), I couldn’t suppress a laugh. It was clear that the judge, while being bound by law, so he couldn’t deny the motion (which is 100% understandable), expressed certain disgust towards Malibu’s “counsel” Paul J. Nicoletti.

As a result, the amount defendant ordered to pay is 3 times less than the trolls demanded, an absolute statutory minimum: $750 per “work” times 20¹ = $15,000 total.

And it’s getting better as we keep reading:

[..] Malibu is awarded attorney’s fees and costs in the amount of $1,679. The court finds Malibu’s request for $2,550 (at a rate of $300 an hour for eight and a half hours) in attorney’s fees to be unreasonable—Malibu has filed hundreds of similar actions across the country and its attorney’s assertion that he spent an hour drafting what appears to be a boilerplate complaint, and an hour and twenty minutes drafting a two-page motion for default judgment strains the court’s credulity. The court further notes that Malibu’s requested attorney’s fees continually reference multiple defendants—a curious request given that there has only ever been one defendant named in this case. Accordingly, the court awards Malibu attorney’s fees for five hours at a rate of $250 an hour. See State Bar of Michigan 2010 Economics of Law Practice Summary Report, at 9 (stating that the median attorney billing rate for an attorney whose office is in Oakland County, south of M-59, is $250 an hour). The court awards Malibu its requested filing fee of $350, but reduces Malibu’s requested $95 service-of-process fee to $79 given that Malibu’s requested costs are contradicted by the record.

So the moral of this story is simple: if your job or relationship doesn’t depend on the fear that your name is dragged through the mud by the “barely legal” pornographers and scumbag lawyers, do not ignore summons, hire an experienced attorney and fight back. There are judges out there who are ripe for stopping the German plague.

Update

US Federal Judge
David M. Lawson

Right after this post was published, Calvin Li and Raul noticed a very similar order (based on the one posted above) was issued in the same district, but by a different judge — David M. Lawson — yesterday (Malibu Media v. Kurt Shelling, MIED 13-cv-11436):

The plaintiff has not made a showing that justifies statutory damages in excess of the minimum amount. The amended complaint alleges merely that the acts of infringement were “committed ‘willfully,’” Am. Compl. ¶ 32, without any factual allegations to back up that conclusion. The plaintiff is entitled to $6,000 in statutory damages for the eight acts of infringement set out in the amended complaint, Exhibit B.

and

The plaintiff’s request for attorney’s fees is problematic.

[...]

The practice here is the essence of form pleading. For instance, on the day this case was filed — March 29, 2013 — seventeen other cases were filed in this district by Mr. Nicoletti with an identical complaint. Each of the complaints is seven pages long with thirty-three paragraphs of exactly identical allegations, and the amount of statutory damages and the terms of the permanent injunction requested is the same. The only difference between the complaints is the defendant’s assigned IP address, which is later used to identify the named defendant.

 


¹Lipscomb found this “legal bonanza” when he stopped filing mass lawsuits: with Malibu’s short films shared in bundles, he can claim multiple infringements from a single alleged file-sharer. This is a “feature” of the rigid, outdated copyright law: for the purpose of the statutory damages, the blindfolded Themis equally treats a multi-million cinematic masterpiece and a cheap, plotless 10-minute flick of amateur teenagers having sex. Only the most despicable cynics exploit this vulnerability to rob the population out of hard-earned money.


US Federal Judge
Thomas M. Rose

A recent infestation of the Ohio state by the copyright troll Guardaley/Malibu Media/Lipscomb (via a local hungry attorney Yousef Faroniya) did not amuse certain judges in the Southern District. On Thursday, Judge Thomas M. Rose vacated his previous orders granting ex parte discovery in four cases (Malibu Media LLC v. Does, OHSD 14-cv-00150, 14-cv-00151, 14-cv-00183, 14-cv-00184), giving Malibu 30 days to fix the problems the judge saw (and smelled). Such things don’t happen every day; hence I wanted to write a short post (thanks to Raul for the heads up).

Judge Rose outlined two issues:

First, Malibu has not presented prima facie evidence of copyright ownership of the specific copyrights at issue. Malibu pleads that it owns the copyrights at issue in its unverified Complaint but there is no evidence from which a court could conclude that Malibu has made a prima facie showing of ownership (the Declaration of Colette Fields attached to the Complaint is invalid because it is not dated and, if it were valid, does not indicate ownership of the specific copyrights at issue).

Second, Malibu’s Complaint alleges that it has traced the allegedly infringing IP address to a physical address that is located within this Court’s venue. The Complaint later alleges that Malibu knows only the IP address and seeks to learn, among other things, the associated physical address. The Court is unclear as to whether or not Malibu knows the physical address of the alleged infringer. If it does, why does it seek to again learn it? If it does not, how was venue determined?

The latter concern was recently raised by Judge Ungaro in Florida (Malibu Media v. Doe, 14-cv-60259): she issued an order to show cause that asked exactly the same question: why Libscomb is so sure that the venue is proper. Lipscomb submitted a lengthy response — all in vain: the judge seemingly didn’t want to navigate through the weasel’s burrows and, frowning, simply dismissed the case for failure to timely serve the defendant.

 

I hope that the recent mudslide of Malibu Media cases descended on the Ohio state will prompt somewhat heightened scrutiny, and the other judges stop rubberstamping ex parte intrusions to US citizens’ privacy.

Sometimes you need to be a bully to beat a bully.

James McGibney

 

Reading Malibu Media’s motion to compel the defendant to answer interrogatory questions (Malibu Media v. Jason Pontello, MIED 13-cv-12197, troll Paul Nicoletti), I noticed a couple of obnoxious questions that the defendant understandably refused to answer:

Plaintiff’s Interrogatory No. 22: Have you or anyone who has had access to a wireless router(s) or modem(s) in your home visited an adult website within the last two years? If so, identify the websites and state how often those websites were visited.

Defendant’s Response: Defendant objects to the nature of this interrogatory in that it is not related to the instant action, is overly broad, vague, unduly burdensome, and part of a calculated strategy intended to threaten Defendant with an intrusive invasion of unrelated personal information as retaliation for his failure to submit to Plaintiff’s extortion tactics. The nature of the request is deliberately calculated to elicit information by which Plaintiff can then use to embarrass him as a viewer of pornography in order to facilitate a coercive and/or extortionate settlement or demand. Accordingly, no response is warranted.

Plaintiff’s Interrogatory No. 23: Have you ever watched x-rated, adult or pornographic movies or live feeds (collectively, “adult content”)? If so, when was the last time you watched adult content, how often do you watch adult content, which studios do you prefer, and what type of movies do you prefer?

Defendant’s Response: [same as 22]

Plaintiff’s Interrogatory No. 24: Have you ever subscribed to an internet company distributing adult content? If so, identify the company and state the period of time that you were a subscriber.

Defendant’s Response: [same as 22]

The defendant (represented by attorney John Hermann) is right, and I hope that the judge will deny this motion. If the defendant is compelled to answer these questions, I have no doubt that Lipscomb/Nicoletti will not hesitate to further invade their victims’ privacy by asking such questions as “How often do you masturbate? If so, what are your fantasies: do they involve very young girls? ” Or “Are you a gay? If so, explicitly specify if you are an open or a closeted gay.”

Plaintiff’s requests improperly seek information regarding Defendant’s internet setup, computer setup, and internet habits.

Plaintiff’s inquiry into Defendant’s personal computer usage and internet setup does not relate to any relevant issue or fact. Such requests have no bearing on Plaintiff’s allegations. Inquiries into patently irrelevant facts demonstrate Plaintiff’s counsel’s flagrant attempt to harass and annoy Defendant.

Stop, stop, stop. Did I write these two paragraphs? Of course not! I simply lifted these passages from the plaintiff’s motion for protective order limiting discovery (Malibu Media v. Jeremiah Benson, COD 13-cv-02394, troll Jason Kotzker), which sought to shield X-Art’s owners Collette and Brigham from the defendant’s “frivolous” questions compiled by attorney David Kerr. I only replaced “Plaintiff” by “Defendant” and vice versa, and made very minor alterations. Here is the original:

 

While I admit that the set of requests for production of documents / interrogatories / requests for admission (embedded below) is very aggressive (which may be counter-productive), the majority of the questions is up to the point, and if answered truthfully by the plaintiff, would bring its dirty copyright shakedown business to the brink of collapse (which will happen anyway rather soon).

It is both ironic and boring to observe a typical reaction of a bully being bullied: a fake “toughie” cries “Mommy!” when being seriously confronted.

It is no surprise that in order to avoid answering the questions on paper and during an inevitable deposition of our porno couple, Malibu agreed to settle this case pending a polygraph test (which is a travesty in my opinion; however, if for the sake of argument we assume that such tests are not a total hogwash, I’d like to see Brigham and Colette undergo the same procedure: they are the paragons of truthfulness, hence they have nothing to fear, right?).

In any case, the list of questions remains in the annals as a nice template for pro se defendants in Malibu cases. My advice though is not to fight Malibu on your own, especially if you are innocent: the tables are turning quickly, and you have a chance to win, including monetarily. But for this you need an experienced attorney.

 

Media coverage
It is always sad to observe default judgments against copyright trolls’ targets. There were troublingly many such orders recently. While some are the result of a faulty or outright fraudulent service, the majority of the defaults are due to defendants’ ostrich philosophy. Alas, avoiding trolls’ harassment by burying one’s head in the sand can result in much more severe harassment by professional collection agencies. In addition, these judgments embolden trolls, i.e. create an illusion that their assault on people is legitimate. Also, these “wins,” even uncollectable, have historically been serving as instruments of coercion.

Chris Fiore
Porn troll Chris Fiore,
a male

One of such default judgments was ordered by a Pennsylvania judge J. Curtis Joyner in Malibu Media v. Brian Flanagan (PAED 13-cv-05890, troll Christopher Fiore) on 7/1/2014. The memorandum is a long and sad read, but for the purpose of this post I want to concentrate on a single disturbing detail (emphasis is mine):

In response to a third party subpoena, the internet service provider disclosed the Defendant’s wife as the owner ofthe IP address that was allegedly downloading Plaintiff’s copyrighted movies. (Amended Complaint at ¶ 26 (Doc. No. 11)).However, Plaintiff brought suit against the Defendant, not his wife, alleging that the Defendant’s wife likely did not engage in the infringing downloads. (Id. at ¶ 28). Plaintiff suspected that since Defendant resides with his wife and had the means to use the BitTorrent in the house where the infringement emanated, he was “most likely” the person to engage in the infringement. (Id.at ¶¶ 26-27, 40). Additionally, Plaintiff asserts that a majority of its’ [sic] subscribers are males, and the Defendant’s online activities, hobbies, and interest implicate he was the infringer, and not his wife (Id. at ¶¶ 28-40).

Implying that being a male somehow proves the guilt is bad enough, but there is more. Doesn’t Colette Field, X-Art/Malibu Media co-owner, state in her endless declarations that

6. Brigham and I both felt that there was a lack of adult content that was beautiful and acceptable for women and couples. We wanted to create this type of content to satisfy what we hoped was an unfulfilled demand.

7. Our goal was to create erotica that is artistic and beautiful.

8. We chose the name ‘X-Art’ to reflect our artistic aspirations, and began investing all of our available money and resources into the production of content — particularly erotic movies with high production value and a cinematic quality.

I’m sure that neither Lipscomb nor Colette is capable of lying. Therefore, I’m confused.

 

First TorrentFreak, then ArsTechnica noticed very troublesome developments¹: Malibu Media, the most damaging copyright troll today, was given a green light to subpoena Comcast for Malibu victims’ “six strike” data (the ISP’s register of alleged copyright infringements).

More than a year ago a controversial “six strikes” program (officially titled “Copyright Alert System“) was created by movie and music trade groups (together with the biggest ISPs) with the goal of deterring piracy. Although the program has many flaws, its creators have been stressing its educational rather than punishing nature. Nonetheless, the participating rights holders reserved the right to subpoena identities of the “most persistent” infringers with the purpose of suing them. It has not happen so far: the PR disaster that labels brought upon themselves by going after individual file-sharers is still fresh in people’s memory, and I doubt that the labels really want to step onto the same rake again: it seems that the lawsuit provision was added mostly as a strong deterrent.

So, while the actual rights holders are hesitant to pursue the litigation route, those who don’t have reputation to begin with, are now trying to camel-nose the weakest point of the program.

I already wrote about Lipscomb/Nicoletti/Schultz’s request to commence a fishing expedition to Comcast’s private data storage. At that time it was only a request. This time it was granted — in two courts.

First, in Illinois, Judge Brown granted plaintiff’s motion on 6/18/2014 in the eventful Malibu Media v. John Doe (ILND 13-cv-06312). It is worth noting the usage of the word may, which can be a scrivener’s error, or (I hope!) a hint to Comcast (emphasis is mine):

It is hereby ordered that Plaintiffs Motion is granted. Plaintiff may serve a third party subpoena on Comcast in the form attached as Exhibit A to this Order, and Comcast may comply with that subpoena.

Next, in Indiana, Magistrate Dinsmore ordered that “Comcast should comply with Plaintiff’s subpoena” in Malibu Media v. Tashiro (INSD 13-cv-00205).

The last of the three known fishing attempts of this kind is pending in Michigan (Malibu Media v. John Doe, MIED 13-cv-11432). An interesting nuance here is that the trolls want to depose not only the defendant’s previous provider, Comcast (the one the defendant was using at the time of the alleged infringement), but also his new one, AT&T. Please remind me: where did we see the names of these two ISPs together in a single lawsuit? Facepalm.

Why does Malibu needs this information in the first place?

The answer is simple: the trolls don’t have sufficient evidence against the defendants to win a jury trial. Period. After examining the defendats’ hard drives, after invading the neighbors’ privacy (in Illinois Malibu interrogated defendant’s neighbors with the court permission), the trolls still want a very vague data that cannot prove much to begin with!

Comcast must intervene

I understand that Comcast is overwhelmed by the blizzard of subpoenas from the copyright trolls and cannot object to all of them. Nonetheless, ISPs did fight for their customers and for their reputation in the past. The performance of their attorneys in AF Holdings v. Does 1-1058 in DC and Lightspeed v. Smith in Illinois was excellent. Again, priorities are priorities: not all cases are created equal: some warrant picking up a fight, and some are simply critical.

This is such a case. Complying with these overreach subpoenas without giving a good fight will open a can of worms, no doubt. Today it is the “six strikes” data; tomorrow it will be the browsing history. Since the entire trolling “business” is premised on the pressure to settle rather than collecting evidence for a jury trial, every tiny bit of the victim’s privacy that trolls put their fingers on will be used to extract a ransom. None of us are completely free of vices. Everyone has something deeply private that can be leveraged by blackmailers.

A gruesome analogy

I’m risking to be prosecuted according to the Godwin’s Law, but I can’t stop thinking about the following analogy. As the Swedish Pirate Party founder Rick Falkvinge wrote in one of his articles,

The Netherlands used to keep track of people’s religion as part of the public records. The intent was noble as always: by keeping track of how many Jews, Catholics, and Protestants there were in a city and its different parts, you would be able to plan for an appropriate amount of synagogues, Protestant churches, and Catholic churches, their proportion to one another, and so on.

Then, World War II came around.

There were almost no Jews at all in the Netherlands after World War II. According to Wikipedia, less than 10% survived (14,346, compared to an earlier population of 154,887). As it turns out, it was very convenient for the… new administration… to have access to the collected data, and it was indeed used against the citizens, as it always is in the end.

The difference here is that we are not talking about the government, yet the alliance of the copyright cartel and ISPs is no less scary when it comes to data retention, even for “educational purposes.” Was “six strikes” conceived in good faith? Maybe. Is it about to be cynically abused by the porn trolls? Hell, yes.

 


¹6/30/2014 update: Techdirt also paid attention to this news.

By a lie a man throws away and, as it were, annihilates his dignity as a man.

Immanuel Kant

 

In a recent report requested by an ILDN Judge Milton Shadur, copyright troll M. Keith Lipscomb (via a local marionette Mary K. Schulz) claimed (emphasis is mine):

Malibu has adopted high standards prior to serving a Defendant and in some cases has determined to not pursue a case based on insufficient evidence. Examples of scenarios in which Malibu may dismiss based on insufficient evidence include: multiple roommates within one residence with similar profiles and interests share a single Internet connection; the defendant has left the country and cannot be located; the results of additional surveillance do not specifically match profile interests or occupation of Defendant or other authorized users of the Internet connection; the subscriber is a small business with public Wi-Fi access, etc.

Apparently, Lipscomb’s definition of “high standards” does not include such a basic virtue as truthfulness. Today I learned¹ from a defendant’s motion to dismiss one of the 2,365+ Malibu Media’s cases that the claims plaintiff makes are exaggerated (to put it mildly). The motion was filed by an Illinois attorney Jonathan Phillips in Malibu Media v. John Doe (NDIL 13-cv-08484):

Malibu has been made aware that the Defendant is a business, and incapable of doing anything, let alone infringing a work. Despite this, Malibu has failed to amend its Complaint.

The motion seeks dismissal not because of this fact though. Lipscomb/Nicoletti/Schultz apparently abandoned this case and failed to serve the defendant within 120 days of filing of the complaint, as the Rule 4(m) mandates:

The time period, over one hundred days beyond deadline, is indicative of Malibu’s want of prosecution. Counsel for Doe has repeatedly sought information on why service was not had. For example, recent emails on June 9, June 20, and June 23 all raised the issue. Not a single email received a response. No summons has been issued, no service has been had, and no request for a waiver of service has been received by counsel for Doe.

Lipscomb lost his credibility long time ago, and this is yet another confirmation: his pathetic statements are as genuine as the moans in the porn flicks he is shaking down people over.

 

Update

6/26/2014

Today, right after Phillips’s motion was filed and Malibu’s malicious sloppiness made the news, Nicoletti rushed to dismiss this case without prejudice, or, in other words, attempted to cut and run in a hope that no attorney fees will be awarded against him and Schultz for their chronic lack of candor.

 

“Not so fast!” — said Magistrate Michael T. Mason:

 


¹I want to take an occasion to give a shout-out to Calvin Li, who wrote a program that scans Pacer for new Malibu Media filings and tweets the results in real time. That’s why we learn about new significant events right away.

Quite an event is looming in Maryland.

Attorney Morgan Pietz, who was instrumental in toppling one troll — Prenda Law — has been recently seriously involved in crashing another one — Lipscomb/Malibu Media/X-Art. One of the most promising battlegrounds Pietz is fighting on is located in Maryland, where in 2014 alone Malibu Media filed 139 shakedown lawsuits — 93% of all the copyright lawsuits filed in Maryland this year. Building upon the work of other defense attorneys, Morgan compiled pretty damning dossier on the most brazen abuser of the copyright law today. The accusations are serious: forum shopping, contingency payments to the witness, Prenda-like shell games, champerty… but the evidence is also colossal: one can easily spend more than one evening reading the exhibits, connecting the dots.

So, yesterday we heard from the judges: a hearing on the pending motions was set for July 30, 2014 (Malibu Media v. John Doe Subscribers: MDD 14-cv-0223, 14-cv-0257 and 14-cv-0263). Although it is formally just a motion hearing, I expect it to be much more significant than some trials. Yes, I mean the Bellwether farce.

Note that not one, but three judges will be present — federal judges Roger W. Titus, Paul W. Grimm, and Marvin J. Garbis. This fact alone suggests that one way or another, it will be a milestone.

Of course Keith Lipscomb will appear in person: the integrity of his house of cards is at stake. In the meantime, please refrain from commenting on Keith’s professional qualities: let him dwell in the land of the illusion that he is a courtroom badass.

 

Update

7/13/2014

As predicted, Lipscomb applied for pro hac vice admission in Maryland — in all the three cases where Morgan Pietz’ bunker buster motion will be heard on 7/30/2014 — an expected trollmageddon before the panel of three judges.

7/14/2014

Thanks to Raul for pointing to this letter:

 

Let’s imagine the following situation: after a successful bank heist, the robber starts throwing banknotes up into the air in the middle of a busy street. People are weak creatures, and it is hardly surprising that the majority of passersby try to grab some money. Next, the police arrive: they ignore the robber (he has a gun: no one wants to risk his life!). Instead, the men in the uniform begin to mass-arrest hapless citizens. On the next day, the robber moves to the next bank and the situation repeats: every day more and more people end up in the local Gulag, while our increasingly brazen robber enjoys his freedom.

This situation is painfully similar to what is going on in the Bittorent copyright trolling scene. Lipscomb, numerous local opportunistic lawyers, Guardaley, X-Art, Voltage — every link of the organized shakedown chain — is aimed at using heavy weaponry of the Law against alleged individual file-sharers, while initial seeders — those who make copyright content available in the first place — are totally ignored. Professional seeders are super careful — they thoroughly mask their identities, and hence it is difficult to go after them. Or is it so?

I monitored X-Art’s new releases for a month, and found out that their clips appear on the Pirate Bay almost exactly two hours after the release. The overwhelming majority of these releases are seeded by a highly active user named Drarbg, presumably a bot that aggregates pirated content from other sources. Whoever operates this bot must be linked to someone who has access to the client area of the xart.com: if not an insider, then at least a person that paid for a subscription. So, are there ways to figure out who is the source of daily leaks? If so, is such investigation affordable? The answer is yes to both questions.

I want to remind everyone the story how Flava Works, a gay pornography studio, caught an initial seeder back in 2012:

[Defendant] was accused of sharing seven movie “clips” on a popular gay torrent site, and Flava had more than just an IP-address as evidence. The company was able to trace the illicit copies directly back to his paid account through a unique code embedded in the videos.

This simple: the programmers wrote a server-side script that inserted a unique code to every clip right before the download request, so every logged-in user would receive a unique (binary-wise) copy. Well, it is not that trivial, but with X-Art’s assets, I’m absolutely sure this is doable, if piracy indeed seriously harms the sales and thus there is enough incentive to curb illegal file-sharing.

But here lies the problem: the announced goal of stopping piracy is hogwash, so the incentive is diametrically opposite. The entire business is built around monetizing infringement, not stopping piracy. Therefore, flicks continue to conveniently appear on the torrent sites two hours after the release.

In many complaints and motions for ex-parte discovery Lipscomb laments:

In an effort to create a serious deterrent and at the same time be made whole for the losses it experiences daily, Plaintiff has no other choice but to file lawsuits against the numerous infringers who unlawfully infringe upon Plaintiff’s rights.

No other choice? I’m astonished that the textbook example of the false dilemma fallacy fools judges so easily. Assuming (for the sake of argument) that the goal is really to deter piracy, there is always a choice — from succumbing to the grim reality of driving a Ferrari instead of Bugatti and doing nothing/embracing file-sharing — to proactive pursuit and prosecution of initial seeders: a well-publicized criminal lawsuit might indeed have a somewhat deterring effect.

Otherwise, ruining random people’s lives has absolutely no effect on the file-sharing activity, and the German shakedown enterprise appreciates it: like ants nurture aphids, copyright trolls nurture illegal file-sharing, harming everyone and everything except their wallets.

Featured comment

Caliban Montrose wrote:

> I monitored X-Art’s new releases for a month, and found out that their clips appear on the Pirate Bay almost exactly two hours after the release.

SJD has pointed out, correctly, that X-Art movies end up on BitTorrent very soon after release, however she actually understates the severity. I have been studying and thinking over the topics SJD touches on above for several months now. A long screed on this follows.

A careful monitoring of the X-Art site will show that new movies are released at exactly 9:00pm California time on the day prior to the date listed. An examination of a pre-database” site, which aggregates information directly from the “warez scene”, will show that X-Art movies appear in some cases no later than 4 minutes after 9:00pm PT, and almost universally within 10 minutes.

Now, there are a few problems with this. First, it is uncertain if it is even possible to download a movie from the X-Art website and upload it to a topsite server that quickly, particularly considering the fact that Ms Field has testified under penalty of perjury that customers of hers have complained in the past of slow download speeds (a problem, I might add, which is often solved by using, you guessed it, BitTorrent, including by such dirty pirates as Amazon Web Services). In addition, pirates (in this case, referring to release groups) generally follow strict video format standards, usually necessitating a conversion from the original format. This takes time—much longer than 4 minutes.

This in fact leaves the Fields with several very good ways of attempting to identify who is distributing their videos. First of all, a cursory examination of a pre-db site will give them a name: KTR. Then, leveraging the paragraph above, they can either follow Flava’s lead (Flava is not, by the way, at all the first to do this) and insert unique identifiers into their videos. Since the videos are released far too quickly for the release group to have been able to re-encode, these identifiers should make it into the final file that makes it to BitTorrent. If they don’t, the Fields still have another excellent way of getting a shortlist of who could be pirating their work: just look in their server logs and see who downloaded the video in question between the time it was posted and the time it is listed as released on the scene. Given that it’s usually such a short interval this cannot be a large number of people. These methods have the great benefit of being entirely free to them, unlike the services of the Mysterious German Men, which certain statements made in past court filings suggest they pay quite dearly for.

It is possible that they already do all of this (though unlikely, given their clear lack of understanding of even the basics of BitTorrent). In that case, they should make this known, otherwise we are forced to conclude, as SJD has done above, that they are not actually serious about stopping piracy.

P.S. It is actually quite obvious why they do not go after “initial seeders” (i.e., those who are observed to be consistently among the first seeders of torrents of their videos). These seeders are universally using anonymously rented servers from sketchy Eastern European internet providers who don’t respond to complaints. Their IP address are thus entirely useless. Going after them is thus hard work (although not impossible, as stressed above), and so the Fields—who have also been blinded, possibly under the influence of the Mysterious German Men, by the ideology that BitTorrent Is Evil—take the easy way out and go after the soft target, the “little guy”: the occasional downloader who leaves torrents seeding indefinitely on his/her residential internet connection without a VPN. So instead of splashy stories of armed raids on pirate data centers we get stories of recent immigrants and geriatrics being hit with “settlements” of tens of thousands of dollars.

It is heartwarming to observe that what we have been talking about for years finds its way to court dockets. Defense attorneys articulate this long overdue fact much better than me, a non-native English speaker and a layperson. I am talking about the elephant in the room — one of the biggest lies that have been keeping US courts under the spell over the recent years: a fable that poor piracy victims hire attorneys and forensic experts to “legitimately” go after Bittorent users in order to deter piracy and compensate for the perceived losses.

The reality is the exact opposite: a recently leaked Gurdaley’s presentation does not leave any room for doubt. Disgraced German outfit Guardaley, presenting itself via multiple shells as a mere “forensic expert,” is in fact a very well organized business of monetizing illegal file-sharing: it recruits attorneys and plaintiffs, and actually steers the industrial-scale litigation campaign.

 

You can get much farther with a kind word and a threat of a teen pornography lawsuit than you can with a kind word alone.

Al Capone, paraphrased

 

Many compare this business model to Mafia’s, and indeed there are obvious parallels: any Mafia parasitizes on illegal activity, whether it is prostitution, illicit drug usage, or, as in our case, online copyright infringement; any Mafia invests in, or at very least, protects the said activity; any Mafia keeps low profile, obfuscating the facts about the bosses: those on the surface (plaintiffs) are usually the least relevant.

There is a few copyright Bittorent infringement cases, in which defense tries to get to the bottom of the murky pool, which is the relationship between German “investigators,” troll lawyers and formal plaintiffs:

 

I wrote about the latter case(s) twice:

 

On 5/31/2014 Morgan Pietz filed yet another bunker buster motion, this time a “reply on merits,” a must read to any defense attorney fighting against copyright trolls, not only Malibu Media: the same foreign power is behind the majority of the US Bittorent lawsuits, whether it is XArt, Voltage Pictures’ multiple shells, Copyright Defenders, and so on.

What is champerty?

Pietz begins with labeling the Malibu/Lipscomb/Guardaley troll operation as champerty:

Malibu’s position is that “[p]aying a service provider to record a computer transaction” is not grounds to exclude evidence or dismiss a case. But that is not a fair description of what appears to be going on in these cases. Rather, here, the “service provider,” is in the business of recording computer transactions, and, together with plaintiff’s lawyers, they solicit clients to stir up litigation, in exchange for a piece of the settlement action, in contravention of Maryland’s strong public policy against champerty.

[...]

The computer network traffic Guardaley/IPP/Excipio is in the business of monitoring, on a massive scale, is only inherently valuable to the extent that it could serve as the basis for copyright infringement lawsuits for statutory damages. Malibu again admits that the lawyers, not the “client,” choose who to sue in these cases.

[...]

In short, these circumstances suggest that when it comes to this “systematically opportunistic” new business model of using the federal court’s subpoena power, the threat of high statutory damages, and the stigma associated with pornography to leverage infringement settlements, the tail is wagging the dog.

The legal definition of champerty is

Legal arrangement in which an entity which is not a party to a lawsuit, finances and/or otherwise pursues a litigant’s claim in exchange for receiving a portion of the judgment award.

I.e., this is seemingly exactly what is going on in the 2,000 Malibu Media cases around the country.

Although third-party litigation funding is perceived differently in different states/circuits, at least some states, like Ohio or Maine have explicit laws against champerty (a hint to defense attorneys who will be fighting Malibu in Ohio). Recent decision by the New York Supreme court made it clear that champerty is not tolerated in the Empire State either. Even if there are no explicit laws against third-party lawsuit funding, I doubt that any court finds such a business model ethically sound: courts are state-funded, i.e. champertors that use the court system as an indispensable part of their business plan are essentially thieves who, in addition to money shaken down from Does, also pocket my and your taxes.

In his reply, Pietz thoroughly debunks arguments presented by Lipscomb/Hoppe in their opposition. He pays special attention to lame attempts at brushing off extensive evidence of the shell game:

Confronted with suggestions that the key witness, being paid on contingency, is merely a front for the discredited German company Guardaley, Malibu argues that since Guardaley also continued to exist as a separate entity, it would be wrong to consider IPP to be merely a front for Guardaley. Of course, there is absolutely no reason that Guardaley cannot continue to exist on paper, and even in practice, while at the same time clandestinely orchestrating everything done by its subsidiary or affiliate IPP. Notably, Malibu does not actually go so far as to deny any of the facts linking IPP to Guardaley.

The fact that Lipscomb stonewalls all the discovery efforts and slithers around uncomfortable questions was also brought to the light:

[...]If the payment arrangements Malibu’s counsel made with IPP were all above board, why has Malibu spent the last six months fighting tooth and nail all attempts by defendants to inquire into these arrangements? If there was and still is nothing to hide, why not fully explain how the German computer guys are compensated, and who they really work for, in the opposition to this motion? Such questions are routine for any expert who actually plans to testify. The fact that it was an “oral” contingency agreement suggests counsel knew the arrangement was suspect, and that the decision to omit mention of the contingent fee compensation paid to the declarants in the ex parte papers filed across the country seeking leave to issue subpoenas was knowing and intentional.[...]

There are many more nuances I have not explicitly noted, so please read the document:

 

 

Morgan mentions, but does not attach in full (referencing only the ArsTechnica/Wired article), a damning email from Guardaley (leaked by Anonymous who hacked infamous UK troll Andrew Crossley’s email as a part of the Operation Payback). In this email a Guardaley employee Terence Tsang admits that creating shell companies (IPP International, Logistep, Baseprotect, Excipio, Anti-Piracy Management Company… you name it) is this troll’s MO:

Conclusion

In the last section of the reply Morgan Pietz argues that the appropriate remedy to the instant champertous lawsuits is dismissal:

If what appears to be true so far is confirmed on the factual record here in Maryland, namely that what Malibu calls the “suit formation” process for Movant’s case occurred during the term of the oral contingency agreement Malibu had in place with IPP, then IPP, Fieser, Patzer, and everyone else connected to IPP should be per se excluded, and the case should be dismissed with prejudice because there is no foundation for any of it.

I’d take it farther. Although it is beyond the lawsuits in question, it is obvious that if “what appears to be true so far is confirmed,” a huge floodgate of class action lawsuits will be open. Lipscomb oinks here and there: “We are not Prenda! Malibu Media is a real plaintiff!” Well, that’s what you’ve said. Unlike with Prenda, it will be far easier to go after the “real plaintiff’s” assets. I don’t think that Brigham and Colette Fields contemplated this grim possibility when they agreed for a small cut for “doing nothing — just collecting the checks.”

Update

6/5/2014

Yesterday Lipscomb/Hoppe filed an opposition to Pietz’s reply. What can I say? “Weak” is an overstatement: all it discusses is procedural gimmicks aimed at striking defense’s evidence as hearsay, the evidence that is orders of magnitude more believable than the “facts” used to harass thousands of purported file-sharers and wrestle them into paying up.

Some lies are simply impossible to say with a straight face, yet the trolls manage to do it:

 

Lipscomb and the gang are scared. I can feel it.

Read Anon E. Mous’s nice analysis of this piece of panic in the comment section below.