Posts Tagged ‘Copyright Troll’

Dan Booth and Jason Sweet are shy about their victory in Shirokov v. Dunlap, Grubb & Weaver et al (MAD 10-cv-12043), and it is understandable since this victory is bittersweet.

It was a long and eventful lawsuit — it was filed in November 2010 (3.5 years ago) and amassed 139 documents in the docket. This litigation was conceived as a class action against the “father” of US copyright trolls, a DC lawfirm Dunlap, Grubb & Weaver PLLC, as well as against US Copyright Group, Thomas Dunlap, Nicholas Kurtz, Guardaley Limited, and a currently bankrupt film studio Achte/Neunte Boll Kino Beteiligungs Gmbh & Co KG — the producer of “Far Cry.”

Unfortunately, class action certification was denied a year ago, so the lawsuit continued as an individual plaintiff case all the way to the judgment: on 3/27/2014 Judge George O’Toole ordered the only remaining defendant DGW to pay $3,179.52, plus attorneys’ fees in the amount of $31,795, as well as $4,935.43 costs ($39,909.95 total).

So, the victory is bitter because the initial goal — class action lawsuit that could change the copyright trolling landscape in the USA — was not achieved. Moneywise, the fees awarded are modest given the effort — the plaintiff was asking for $362,767. As explained by the judge, since the case lost its class action status, class action-range fees were not appropriate despite the actual effort.

Yet the result is still sweet: victory is victory. The fee amount is not that low, and I believe the outcome will serve as deterrence to copyright law abusers.

Kudos to Jason and Dan for pioneering a good fight!

 

To the best of my knowledge, the only other class action lawsuit filed against copyright trolls was Barker v. Patrick Collins Inc. et al (KYWD 12-cv-00372). That lawsuit was dismissed because the plaintiff failed to convince the court that she had personal jurisdiction over the defendants.

I’m sure that since the situation is different now (mostly because of Prenda’s downfall and since Lipscomb’s luck is also about to be exhausted), we will inevitably witness more class action lawsuits in the near future: I know that some lawfirms already think that the time is right and are actively looking for plaintiffs — copyright troll victims.

While covering copyright trolling in the US, media almost always avoids questioning who really directs the show. Press follows usual court reporter templates: there is a plaintiff who hires an attorney and/or investigator, and both work for a flat or hourly fee. Sometimes attorneys’ names don’t appear in news articles at all. In reality, the overwhelming majority of shakedown lawsuits has been initiated by German “anti-piracy” cartels. As you will read in the documents below, it is them who scout around for plaintiffs and opportunistic lawyers, it is them who handle logistics and, of course, reap the lion’s share of settlement proceeds.

Recently I stumbled upon an interesting presentation created by someone named Gerephil Molina from Cebu, Philippines. This presentation describes the inside operations of an infamous German copyright troll Guardaley (and its various facades, for example, IPP international — Lipscomb/Malibu Media’s “engine,” or the subject of this post — Anti-Piracy Management Company)¹.

You can watch this Anti-Piracy Management Company Presentation on the Prezi site (Flash-based) [The original presentation was hastily removed on 4/21/2014 — scroll down to see update], or read the pdf embedded below: I spent a couple of hours creating this document in a premonition that Prezi’s material will be removed — once visitors from Karlsruhe show up in my blog’s log. Content wise, it should be exactly the same as the original presentation (sans graphics, which is meaningless anyway).

This presentation does not look like a final product; and I’m still not sure who the target is. It looks more like an operations manual for the BPO Cebu office, yet the trolling technology description is definitely obtained from the original source — Guardaley. I have a feeling that it was not intended for public eyes.

There is a little doubt that one of Guardaley’s key players, Patrick Achache is behind this particular Guardaley’s incarnation (Anti-Piracy Management Company — APMC). Another Guardley-connected name that appears in this playbook is Daniel Macek (p. 35), an “expert” in some US cases, in particular, a potentially fraudulent Elf-Man LLC, v. Lamberson (the other “expert” in this case is Michael Patzer, who played his small role in the Bellwether vaudeville nearly a year ago).

I put quotation marks around “expert” not only because of my “biased opinion”: as we see in the presentation (p. 35 — emphasis is mine), I’m not the only one who questions this expertise:

paragraph 2 in regards to software consultant (i.e., he can talk about software issues), & we’re hoping the judge won’t question his qualifications too much.

I will not go over the statements and bullet points: they speak for themselves. The overall air is rather dry, business-like, cynical, which is not surprising: it’s a business based on exploiting the letter of the law, with little, if any, thought about the irreparable harm to thousands of families. Similar to how the military-industrial complex monetizes war, cartels like Guardaley monetize infringement, but in reality both thrive on suffering of others.

The stated goal of “ending the infringement” is laughable: no sane businessman wants the source of income to dry out.

I hope that defense lawyers (“bad guys,” according to the trolls, p. 5) will find some points that can be used in the ongoing fight against the copyright trolling plague.

 

 


¹ You can read more about the tangled web of German shell companies in Morgan Pietz’s recent motion he filed with the Maryland court.

Update

The original Prezi presentation was deleted around the time this post was published. Fortunately, yesterday I not only preserved the textual part (embedded above), but grabbed the video of presentation itself. Because of YouTube clip length restrictions, I broke it to four pieces. Continue to videos…

No man has a good enough memory to be a successful liar.

Abraham Lincoln

 

It is always nice to observe defense attorneys perform judicial jujitsu, i.e. using trolls’ statements against them in an efficient, energy-saving manner. Since Keith Lipscomb’s industrial-grade lies imply inevitable bloopers, no black belt is necessary, yet attention to detail and tedious work is required.

On 4/14/2014 attorney Jonathan Phillips filed defendant’s renewed motion to compel Lipscomb/Malibu to answer to discovery requests in an eventful lawsuit Malibu Media v. John Doe (NDIL 13-cv-06312).

In short, Phillips calls out Lipscomb’s disingenuous attempts to stonewall the discovery, specifically, his refusal to answer interrogatories #3 and #5 because, according to Lipscomb, 1) the information sought is “neither relevant nor likely to lead to the discovery of admissible evidence,” and 2) the work required to compile this information constitutes undue burden. I won’t analyze the former lame excuse: read Phillips’s argument below; instead, I want to stress that the “undue burden” lie has been debunked because of Malibu/Lipscomb’s recent status report. This report was widely covered in the media mostly because of Lipscomb’s brow-raising practice of offering victims to undergo polygraph tests, yet there is much, much more in this document. Given that our trolls have demonstrated that they keep their data tidy and can run complex queries, Phillips reasonably questions Lipscomb’s desperate attempts to sabotage the discovery:

Malibu has the information sought, as well as a great deal of other information. It is able to produce this information in an astonishing level of detail, as indicated by the Malibu Status Report. Malibu can simply run a computer script, already developed, to search for and report the information sought. This is not unduly burdensome.

 

The response to interrogatories (or rather a lack thereof) was signed by Colette Field, although I’m not positive that she even read it. Just look at the answer to another question:

Attorney Mary Schulz has a standard tiered contingency fee agreement. [...] Plaintiff is responsible for paying all of the costs and fees associated with this litigation. Plaintiff is the only other entity that has a financial interest in the outcome of this litigation. No other entity is entitled to any share of the monies which may be paid from Defendant to Plaintiff.

No other entity? Prenda-strength denial, isn’t it? Just like AF Holdings’ “CEO” Mark Lutz, Keith Lipscomb now works for free. Right. Poor girl will eventually be held responsible for this perjury, while Lipscomb will likely weasel out.

 

Overall, I feel a good trend: the more pressure defense attorneys (especially Jonathan Phillips and Morgan Pietz) apply — the more twisted logic is poured into the court dockets. The more twisted logic trolls produce — the more inevitable slips of the tongue will occur. In the end, Lipscomb and his gang will be suffocated by the web of lies they had woven.

Update

14/17/2014

Fresh from the press (hat tip to Calvin Li, who wrote a program that subscribes to certain courts’ PACER RSS feeds and tweets as soon as new documents are filed): Jonathan Phillips filed Defendant’s second motion for an order requiring Malibu Media, LLC to show cause why it should not be held in contempt.

This motion is short and sweet: no need to annotate it. You will like it:

 

On 3/28/2014 defense attorney Morgan Pietz (with local counsel in Maryland John C. Lowe) filed a bunker buster of a motion in three Maryland individual cases, all titled Malibu Media, LLC v John Doe (MDD 14-cv-0223, 14-cv-0257 and 14-cv-0263).

This motion is, in part, a continuation of the work by Jonathan Phillips, who discovered and called out unethical (to say the least) contingency fee agreement between Malibu’s nationwide counsel, M. Keith Lipscomb, and a key witness, a German “IP harvester” IPP International.

The title of the motion is rather long: ISP subscriber’s motion for an order to show cause as to why all evidence and data from Tobias Fieser and his company IPP should not be precluded and these cases dismissed.

Tobias Fieset’s declaration is basically the only “evidence,” upon which the entire trolling house of cards is built (no wonder the trolls sabotage any discovery so aggressively), and if Lipscomb and his clique did not lie through their teeth when asking for ex parte discovery, courts would most likely think twice before allowing it:

Common sense and the slew of cases cited in Section III(a)(2), above, all suggest that the Court might have excluded or, at the very least, looked more skeptically at the Fieser declaration if the Court knew it was coming from a contingent fee witness. Thus, disclosing Fieser and IPP’s contingent interest in the litigation as an adverse fact as part of the ex parte early discovery requests would be required under Rule 3.3(d).

I like that throughout the motion Pietz compares Lipscomb’s shakedown cartel to infamous Prenda Law:

In the Prenda case, when confronted with probing questions about mysterious offshore shell companies fronting the nationwide settlement mill, rather than provide answers to these questions, the Prenda lawyers attempted to “cut [their] losses and run out of court, using Rule 41 as an emergency exit.” It appears that the same thing has now occurred in the Malibu cases in this district. Malibu has unilaterally dismissed a case pending before Judge Motz, rather than address troubling concerns about the fact that Malibu (or its lawyers) apparently pays the key witness in these cases pursuant to an “oral contingency agreement.”

I know for a fact that this comparison immensely pisses off Lipscomb, and for a reason: if one hears nothing but lie, all such allegation can cause is a mere shrug, but a truthful, precise analogy usually hits the nerve. I commend Morgan for calling the things as they are: Lipscomb and Prenda are fruits of the same poisonous tree.

As you noted, Pietz accuses Lipscomb and his local counsel Jon Hoppe of blatant forum shopping. Indeed, even a colette would understand why the trolls, being confronted on the contingency fee issue, hastily dismissed the case assigned to Judge J. Frederick Motz, a judge who undoubtedly thinks that contingency fee agreement with a key witness is not kosher:

As Judge Motz once noted of the problem posed by deals to pay witnesses a contingent fee, “[f]inancial arrangements that provide incentives for the falsification and exaggeration of testimony threaten the very integrity of the judicial process which depends upon the truthfulness of witnesses.”

The unethical agreement is not the only issue here: IPP/Guardaley relationship is being questioned, purported reliability of Guardaley’s methods is called out, a relative unimportance of the “plaintiff” XArt in the conspiracy is finally addressed, and some other relevant questions are raised. You really need to read the entire motion. It’s 58 pages long, but it is worth your time. It is a very tough task to annotate this work, and I had no choice but to omit some really important points.

So what does this motion ask for?

  • As to the preliminary matters,
    • to allow the Doe to formally intervene, thus avoiding trolls’ hallmark argument that putative defendants have no standing;
    • to consolidate the cases, obviously;
    • to stay subpoena until this motion is ruled upon.
  • As to the merits, Malibu should be ordered to show cause on three factual issues and a resulting legal one, as follows:
    • confirm whether IPP and Fieser were engaged as contingent fee witnesses and detail the nature and extent of the relationship;
    • given the substantial documentary evidence suggesting otherwise, explain the statement made on the record to Judges Titus and Grimm denying that IPP is a front for Guardaley, and the apparent attempts to disguise Guardaley’s behind-the-scenes role in these cases;
    • explain the conflicting statements about whether it was IPP or Excipio software used to collect the data this case is based on; and
    • assuming that IPP and Fieser do or did have a contingent interest in the outcome of this litigation and that IPP is really a front for Guardaley, and that Malibu has been less than forthright about all this, address what effect such champertous arrangements and lack of candor should have on this and other similarly situated cases, in view of Movant’s arguments in the Motion For An OSC that preclusion and dismissal should result.

 

 

Declaration of Morgan Pietz’s, referred in the above document, is here, and here are 270(!) pages of exhibits:

 

On 4/10/2014 Hoppe moved for extension of time, which was granted. Today, 4/14/2014, Morgan Pietz responded to that motion (Exhibits A and B). Pay attention to Exhibit A (Hoppe’s email to Verizon’s legal compliance department): you will like it:

Dear Ms. Barron:

That is flatly outrageous! Your attorneys are not empowered to functionally rule on Mr. Pietz’s request for a stay prior to the Court ruling on the same. I expect full compliance with all of our subpoenas unless and until the Court orders a stay of the same. I would hate to see the goodwill we have enjoyed breakdown over this issue. Please put me in touch with your counsel immediately!

- Jon A. Hoppe, Esquire

Sent via BlackBerry from T-Mobile

This clown signs his misguided rants as “Esquire,” is if he were a real attorney.

Thyself shalt see the act:
For, as thou urgest justice, be assur’d
Thou shalt have justice more than thou desir’st.

Shakespeare. The Merchant of Venice.

 

Since Prenda became a national poster child, I’m not compelled to cover its illustrious downfall anymore, unless I have something unique to add: there are people who write much better than yours truly. I’m sure anyone who follows Prenda stories enjoyed yesterday’s news: our trolls had their first oral argument on appeal in front of the US Court of Appeals for the 7th Circuit (appealing Judge Murphy’s sanctions in Lightspeed Media Corporation v. Smith et al, ILSD 12-cv-00889). If you didn’t listen to the recording yet, you definitely should. Also read:

 

I want to present an eyewitness story. Heather S. enjoyed the show personally, so her first-hand impressions are valuable. Continue to pictures!

When we think that there is no more low ground for the trolls to stoop to, over and over again we are proven to be wrong. Introduction of polygraph tests by Keith Lipscomb’s shakedown enterprise as an instrument of coercion is repulsive.

Do you remember what happened two years ago, when a judge ordered Prenda to submit a detailed report of its shakedown activities? The report created quite a stir by revealing (or, more precisely, confirming) the fact that Prenda had served exactly zero defendants in 118 mass Doe lawsuits.

This time a similar order was issued to Malibu Media by an Illinois Judge Milton Shadur (remember how he treated John Steele?). According to the docket (Malibu Media LLC v. Doe, ILND 14-cv-00693), the report was supposed to be filed under seal, yet as of today it is available on Pacer. This report provides some previously unknown details of the well-lubricated shakedown machinery operation.

This report was filed today, 4/6/2014, formally by Lipscomb’s Illinois local, Mary Schulz. Yet it is unlikely that she wrote this document: the metadata shows an attorney from Lipscomb’s office, Emilie Kennedy, as the author.

First I’ll skip to the most mind-swirling revelation and address some other issues after that.

Polygraph test: seriously?

On page 4 we read:

Further, Malibu will dismiss its claims against any Defendant who agrees to and passes a polygraph administered by a licensed examiner of the Defendant’s choosing. Out of the entirety of polygraphs administered within the United States by Malibu, no Defendant has passed and all such examinations have subsequently led to the Defendant settling the case.

This is Orwellian. First of all, it is quite an established fact that polygraph tests are pseudoscience. While such tests are still used in some states (Illinois is not among them: test results are not admissible in courts even if both parties agree to enter these results into evidence), scientific community has always been skeptical. There are many papers questioning lie detection methodology accuracy. For example, in 2003 Board on Behavioral, Cognitive, and Sensory Sciences and Education and Committee on National Statistics conducted a substantial research and concluded:

We have reviewed the scientific evidence on the polygraph with the goal of assessing its validity for security uses, especially those involving the screening of substantial numbers of government employees. Overall, the evidence is scanty and scientifically weak. Our conclusions are necessarily based on the far from satisfactory body of evidence on polygraph accuracy, as well as basic knowledge about the physiological responses the polygraph measures. [...]

Read the entire Conclusions and Recommendations.

I believe that “offers” to “voluntarily” conduct such tests were, in fact, just another form of pressure, similar to threats to reveal Doe’s porn habits to family, bosses and neighbors. We don’t know if the defendants in question were represented. I’m afraid not, and this is really sickening: we can only guess what kind of lies, threats, half-truths were poured on unprepared laypeople. (Update. Confirmed: only unrepresented Does would take this test — see the featured comment below.)

Good news is that the very fact that the trolls resort to such dubious “evidence” means one and only one thing: regardless of defendants’ guilt, Lipscomb and his gang has zero evidence of wrongdoing in many cases (which was recently confirmed).

Trolls always think that money flows only in one direction — to their pockets. It is usually true initially, but the tide can (and eventually will) change the direction, as we gleefully witness what’s happening with Prenda these days. When it comes to XArt’s illegal conduct, it would be nice to polygraph its models, asking two simple questions:

  • Have you been filmed at Colette and Brigham Field’s residence? (No permits.)
  • Have you used barrier protection during filmed intercourse? (Ventura county ordinance — up to 6 months in jail per violation.)

 

For that matter, I also would love to ask Keith Lipscomb while he is connected to the polygraph device:

  • Did you commence 1500+ lawsuits nationwide for a proper purpose (to protect copyrights), not to line up your pockets using slow-moving courts as an instrument of coercion?

 

However, I’m pretty sure that Keith would come out clean: crooks are usually good at defeating lie detection technology. On the other hand, many people become nervous, rendering the test useless: I, for one, would likely fail the test answering the question about my name and age.

The numbers

Another interesting part of the report is the numbers.

In totality, Malibu has filed 268 cases within the Northern District of Illinois. Of these 268 cases, 25 cases were with joined defendants and 243 cases were actions filed against a single Defendant, like the current case at hand. The 268 cases filed by Malibu had a total of 886 Defendants between them. Of these 886 defendants, 643 were within joined suits and 243 defendants were from cases against only a single defendant.

So what are the shakedown proceeds?

Of the 886 defendants in cases filed by Plaintiff in the Northern District of Illinois, 174 defendants have settled the case against them.

110 Does settled during the joinder era, when the amount was $2,000–$4,000, and 64 — from individual cases, where the ransom was much higher — $7,000–$10,000, which results roughly in 1 million dollars in Illinois alone. Illinois’ share in the total number of lawsuits filed by Malibu nationwide is about 1/6, so it is reasonable to assume that the extortion machine brought about 6 million dollars to Lipscomb, IPP and XArt. Later in the report we read:

More importantly, Malibu’s main source of revenue is from the subscribers of its website, not from lawsuits.

This is disingenuous to say the least. Either it is a cynical lie, or Lipscomb pays “plaintiff” only a small amount of the proceeds. The latter possibility was suggested by Adam Curry, a well-known radio show host from Texas.

Reasons to dismiss

Trolls claim that about half of the cases dismissed without settlement were either because of “hardship” or “insufficient evidence.” Here is how trolls define “hardship”:

Hardship is when a defendant may be liable for the conduct, but has extenuating circumstances where Plaintiff does not wish to proceed against him or her. Examples are when a defendant has little or no assets, defendant has serious illness or has recently deceased, defendant is currently active duty US military, defendant is a charitable organization or school, etc.

So, correct me if I’m wrong: “hardship” is a preexisting condition. I.e. if a defendant becomes bankrupt and/or ill as a result of harassment or insane settlement/judgment, it does not qualify, right? In addition, there are many examples when Lipscomb & Co continues to twist arms of the weak (like an 80-year old woman).

As for the insufficient evidence as a basis for dismissal, just read this post

Not a troll

On page 14 trolls claim that they are not trolls. What can I say? In my opinion, the duck test is way more reliable than polygraph.

 

Exhibit A | Exhibit B | Exhibit C | Exhibit D | Exhibit E | Exhibit F | Exhibit G | Exhibit H

 

To conclude on a lighter note, here is the only justified use of a lie detector — in a comedy:

 

Media coverage
Featured comments

By Anonymous

Current doe in a Malibu Media case. I am innocent and fighting back tooth and nail. I was offered a polygraph to avoid litigation, just like this. I was actually very tempted to take it because I felt strongly that I had nothing to hide and that I would pass. However my lawyer told me in no uncertain terms that if I went ahead with it, there would be no choice but to withdraw as my council and that advising me to do it would amount to legal malpractice.

After reading that nobody in the entirety of MM’s polygraph cases has ever passed, it’s looking like my lawyer’s advice was rock solid.

Also, saying that the polygraph examiner is of the defendant’s choosing is garbage. The polygraph I was offered was an ‘independent’ registered polygrapher selected by the Plaintiff.

I’m almost certain I will be served due to my refusal to take the polygraph, because no other recourse against litigation was ever offered. “High standards prior to serving a defendant” indeed.

By that anonymous coward

[...] ProTip: IF THE PERSON SUING YOU OFFERS YOU A WAY TO PROVE YOU’RE INNOCENT, IT IS A TRAP!

Despite copyright troll M. Keith Lipscomb’s assurances that he is going only after the worst of the worst infringers, time and again we witness innocents being shaken down by Lipscomb’s Mafia with impudence. It happened to Leo Pelizzo in Florida, it is happening now in Indiana to a defendant named Kelley Tashiro, a mid-aged middle class woman (a nurse) from an Indianapolis suburb, and, like Pelizzo, an astonishingly unlikely person to be a “serial infringer” of X-Art’s “barely legal” pornography.

Brief history of the case

Lipscomb and his Midwestern pawn Paul Nicoletti filed the Malibu Media, LLC v. John Doe (INSD 1:13-cv-00205) lawsuit on 2/5/2013. The complaint was accompanied by an infamous and scandalous “Exhibit C,” a disgusting practice, for which the trolls were sanctioned in Wisconsin twice. According to Lipscomb, such exhibit (now striken from the record) was meant to demonstrate that the Doe is a habitual Bittorent user, who infringes upon a lot of other copyrighted stuff: music, software, other pornography. In reality, this “extended surveillance” proves nothing. As a Florida judge recently ruled in another Lipscomb’s/XArt’s case,

[...] Even if this IP address is located within a residence, the geolocation software cannot identify who has access to that residence’s computer and who would actually be using it to infringe Plaintiff’s copyright. The Court finds that Plaintiff has not established good cause for the Court to reasonably rely on Plaintiff’s usage of geolocation to establish the identity of the Defendant.

The only goal of this practice is to intimidate a defendant and coerce a settlement notwithstanding that the Doe may be completely innocent.

As in almost all the trolling cases, the discovery was granted, and the shakedown ensued. It is worth noting that on 2/15 Judge Dinsmore, to whom this case had been reassigned, expressed a concern regarding trolls’ practices:

The Court has become aware of several court opinions from across the country that have raised concerns regarding potentially inappropriate procedures being utilized by plaintiffs in cases similar to the instant case to extract settlements from putative defendants without any intention by the Plaintiff of ever actually litigating the case on its merits [...].

One unsettling fact is the short time between the order granting ex parte discovery (subpoena to Tashiro’s ISP) and the first indication that Nicoletti learned Tashiro’s identity: only nine days. Most likely, Tashiro, having learned about the subpoena from her ISP, called the troll (a very bad idea: under no circumstances should one talk to shakedown artists without an attorney).

The defendant was named in an amended complaint on 4/8/2013, and in May she hired a Peoria attorney Jonathan Phillips to defend her innocence. A very good choice.

Many interesting events took place in this case (see the docket), but, in order not to abuse reader’s patience, I’ll fast forward to the main subject of today’s post.

Full Prenda and bogus accusations in spoliation of evidence

On 2/13/2014 Nicoletti filed an unopposed (this one is a charade to me) motion to deposit not only Tashiro’s husband, but four neighbors “[to] eliminate[e] all doubt that the infringement took place outside of Defendant’s home.” I can’t help drawing bold parallels with Prenda’s conduct.

A day earlier Nicoletti filed a motion for sanctions against the defendant, accusing her of spoliation of evidence. This accusation was based on Patrick Paige’s (Lipscomb’s expert) findings:

See Declaration of Patrick Paige (“Paige”), Exhibit A [...] His examination revealed evidence of extensive BitTorrent use. Id. Defendant deleted numerous files and folders associated with BitTorrent use. The deletions occurred on December 22, 2013 at approximately 10:00 pm. That was the night before the hard drives were turned over to Quantum Discovery for imaging. Id. Mr. Paige recovered seventy-three (73) deleted BitTorrent files. Many of them are associated with adult movies. Id. BitTorrent clients, that enable the BitTorrent protocol to work, were also deleted. Id. One hundred seven (107) files and folders were also deleted on December 22, 2013 at 10:00 pm. Most of these were parent folders containing thousands of files. According to Mr. Paige, copies of Malibu Media’s movies could have been in these folders. Undersigned will take it a step further: the files were likely in these folders and that is likely why they were deleted.

(By the way, Nicoletti conveniently “forgot” to file the Exhibit A.)

As an IT professional, I immediately smelled bullshit. Assuming that Tashiro used Windows, her file system was NTFS. File descriptors in NTFS are stored in a flat table, and deleting a folder prompts the system to go over these entries and mark all the files from that folder as deleted, one by one — just like it would be the case if each file was deleted separately. Consequently, whether a file is deleted directly, or as a part of a folder — does not matter: these files are equal from any recovery program’s point of view.

Also, phrases like “could have been” are unacceptable when making such serious accusations. This phrase alone should have raised a red flag: when there is no lint of evidence that Plaintiff’s files had ever been on the dive, all this “expertise” is merely a pounding on the table.

Fortunately, defense did not miss these points either.

Moreover, the defendant hired Delvan Neville (no introduction necessary) to conduct her own forensic analysis.

The implication of the findings was unambiguous: Lipscomb, Nicoletti and Patrick Paige are full of shit. Phillips filed a powerful opposition on 3/28/2014, thoroughly explaining why:

Malibu wholly relies upon an incompetent declaration based on a less than full analysis of Tashiro’s turned-over hard drives. Incredibly, Malibu has filed its Motion without a single iota of evidence that Kelley Tashiro that knew of, or did, anything.

[...]

In a desperate attempt to salvage a case it has no evidence to support, Malibu has failed to provide any reason to believe that Tashiro has committed perjury. Further, Mr. Paige’s affidavit is not only without support, it is incontrovertibly based upon a half-done analysis, that when fully performed, shows all files are still present, no attempts at “wiping” were made, and no evidence was actually spoliated.

 

And here is Exhibit A — Declaration of Delvan Neville:

 

Other exhibits:

Conclusion

We know only a few Malibu Media cases where innocent defendants fought nail and tooth for their good names. But how many silently settled because of a reasonable fear of inevitable reputational damages? Lipscomb and his “plaintiff” (who thinks that the law is something that is served a la carte) assaulted numerous families just because they could, all based on information provided by an unlicensed, improperly compensated foreign IP harvester (IPP International) of a questionable expertise¹, and an “expert” (Patrick Paige), who would likely benefit from reading “Computers for Dummies.”

Although I respect defendants’ desire to regain privacy that trolls have rudely violated, I really hope that a couple of these cases will find their way to real jury trials, not something like the Bellwether farce — a prospect Lipscomb and his clique are terrified of.

 


¹ I’m aware of one Malibu Media case where their expert found nothing on the defendant’s drive, and the settlement offer went from $7,500 to a walk-away, which the defendant accepted. Too much for the “impeccable technology”!.

Yesterday I tweeted a screenshot from an X-Art porno flick, one of dozens that have been illegally produced at the owners’ home. I stressed that two laws were violated: filming without permit in a residential area (where filming is not permitted at all), and the Ventura condom ordinance: breaking this law is a misdemeanor and pornographers can get as much as six month in jail per violation.

A guy who apparently was not familiar with XArt’s extortionate activity, reasonably asked:

I replied that my point was not to call out pornographers’ illegal activity per se, but sheer hypocrisy of Colette Field, XArt’s co-owner: in multiple comments and affidavits she pretended to be a victim of law breakers — evil pirates. On many occasions she justified ruining lives of thousands for sharing XArt’s smut over Bittorent networks, because

If you want to live in the United States you must abide by the laws of this country, no more, no less.

You can see the entire Twitter exchange here.

And hypocrisy was confirmed time and again: Colette has favorited the tweet pictured above:

What does it mean? Here is my interpretation of Colette’s point:

There are laws and there are laws. Some laws are stupid; specifically those that don’t let us make easy money. We are above such laws. But if a law allows us to easily extract, Mafioso-style, undeserved money from hardworking families, such law is sacred.

Even if this IPaddress is located within a residence, the geolocation software cannot identify who has access to that residence’s computer and who would actually be using it to infringe Plaintiff’s copyright.

From Judge Ungaro’s Order

 

We saw it coming: in less than two months in the Southern District of Florida, a venue where copyright troll Keith Lipscomb’s command and control is located,

 

In the latter case, on 10/29/2013 the judge sua sponte ordered to show cause why the Court may reasonably rely upon the Malibu’s usage of geolocation to establish the identity of the defendant (and also establish that the defendant may be found within this district).

Lipscomb responded on 11/12/2013, and apparently satisfied Magistrate Torres, to whom Judge Ungaro referred the case. As already mentioned, the case was closed not because of the OSC outcome, but for failure to serve the defendant.


US Federal Judge
Ursula Ungaro

Fast forward to March 2014. On 3/5/2014 in Malibu Media v Doe (FLSD 14-cv-20213), an identical order to show cause was issued by Judge Ursula Ungaro. Lipscomb responded, but this time he was not so lucky: the judge was not satisfied with Lipscomb’s explanations and on 3/20/2014 ordered that

[...] Even if this IP address is located within a residence, the geolocation software cannot identify who has access to that residence’s computer and who would actually be using it to infringe Plaintiff’s copyright. The Court finds that Plaintiff has not established good cause for the Court to reasonably rely on Plaintiff’s usage of geolocation to establish the identity of the Defendant. The Court also finds that Plaintiff has not established good cause as to why this action should not be dismissed for improper venue.

The case was closed:

 

This is not all: on 3/20 Judge Ungaro issued identical orders to show cause in two other Malibu/Lipscomb’s cases assigned to her, 14-cv-60681 and 14-cv-60682 (filed just two days before, on 3/18/2014). Well, the outcome is predictable.

Judges rule according to the law, no doubt. Yet the law is not math, there is always a window in which a case can be ruled one way or the other, especially in civil cases. By default, a lawyer, the “officer of the court,” is a trusted party, and a judge often makes decisions taking such lawyer at his word.

But if a lawyer clogs understaffed courts with lawsuits that have nothing to do with advancing justice but rather with stuffing his pockets, sooner or later the pendulum moves in the opposite direction. Losing reputation is a one-way street, and I feel that it is what we are currently witnessing in FLSD. Judges are sick and tired of Lipscomb, and if two years ago he could forge a signature and get away with it, today his extortionate activity in his own backyard is about to end.

No doubt other states/districts will follow this trend, and I pray that it happens soon.

Media coverage
Update

4/4/2014

On 4/4/2014, following this groundbreaking order, Judge Federico Moreno, who, citing Judge Wright, recently denied Lipscomb’s request for ex parte discovery, sua sponte issued an Order to Show Cause “why the Court should rely on geolocation services to establish the Defendant’s identity and location in this district, as well as why the Southern District of Florida is an appropriate venue for this case.”

THE COURT has recently been made aware of an Order by Judge Ungaro in an identical case, Malibu Media v. John Doe, 14-cv-20213-UNGARO, finding that Plaintiff has failed to show that (1) the Court could rely on geolocation services to find establish the identity of the Defendant, (2) the Defendant’s location in this district, and (3) that the Southern District of Florida was a proper venue.

Response is due on April 14th.

Keith Vogt
Copyright troll
Keith A. Vogt

On 3/14/2014 copyright troll Keith Vogt filed a motion to intervene in Malibu Media v John Doe (ILND 13-cv-06312), finally designating himself as a porn troll and a Lipscomb’s goon. Robert Redford will be delighted, I’m sure.

The following documents show that Lipscomb panics. Long awaited news.

Update

3/17/2014

On Friday, a reply to Phillips’ motion (why Malibu shouldn’t be held in contempt of the court for failing to respond to comply with discovery) was filed. It is worth noting that this “masterpiece” was signed by Paul Nicoletti, who did not appear in Illinois for a long time, after Mary “judge is an assholeSchulz was hired more than a year ago. Apparently, Lipscomb needed a deputy in Illinois with a higher rank of scumbaggery.

The argument is beyond laughable:

TCPDump is the only software in Plaintiff’s possession, custody, or control responsive to the Court’s Order. Further, it is the only software Plaintiff would possibly use at trial.

Yeah, this is the only software that proves infringement. And I’d like to use notepad.exe to substantiate my counterclaims if I ever decide to sue XArt for numerous occasions of breaking the law…

 

Update

3/29/2014

On 3/28/2014 Jonathan Phillips filed defendant’s opposition to Excipio’s motion to intervene, arguing that Excipio’s intervention is not necessary and only intended to “raise the cost of innocent infringers’ defenses,” i.e. a textbook definition of a frivolous act.

Phillips informs the court about a very disturbing fact: that

[...] Mr. Türbach, Excipio’s CEO, is also the President of Copyright Defenders, Inc., a Nevada Corporation. See Exh. A. It’s Director, Mattihas Schroder-Padawet provides declarations, like those of Tobias Feiser in this case, for many different plaintiffs and companies. [...] (wherein Mr. Padawet claims to work for Excubitor USA, Inc.).

I wrote about Copyright Defenders in September 2012.