Posts Tagged ‘Brigham Field’

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

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

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

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

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

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

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

Just look at this:

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

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

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

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


Copyright troll Yousef Faroniya
is looking at the phone with fear

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

And finally,

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

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

 

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

The settlement demand:

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

…was met with a counter-offer:

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

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

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

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

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

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

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

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

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

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

 

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

I wish Francesco Ferreiro and his client to prevail.

Update

9/16/2014

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

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

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

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

Protective order gamesmanship

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

This case wasn’t different:

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

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

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

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

One-way discovery

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

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

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

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

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

 

Where is the evidence?

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

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

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

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

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

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

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

 

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

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

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

Tonianne Bongiovanni
US Magistrate Judge
Tonianne Bongiovanni

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

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

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

Magistrate Tonianne Bongiovanni‘s concern is well articulated:

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

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

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

 

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.