Posts Tagged ‘Copyright’

This brief post is an addendum to my Sunday’s story “How Lipscomb & Co take advantage of unrepresented defendants,” where I described how the troll makes up accusations of spoliation and perjury out of thin air to compensate for the total lack of admissible evidence.

Today Raul tweeted the link to a defense counsel’s letter to the judge. This letter tells a gruesome story of the very same tactics but employed during a deposition.

Jacqueline M. James
Porn troll Jacquline M. James

In this case (Malibu Media v. John Doe, NYSD 14-cv-10155), like in a myriad of other ones, the defendant’s hard drive was examined and came out clean. Nonetheless, Lipscomb’s local puppet in New York Jacqueline M. James did what would probably qualify as blackmail if done outside of the course of litigation:

Dissatisfied with the lack of evidence of infringement and existence of testimony denying same, Malibu’s counsel falsely accused Doe of destroying evidence and reiterated her intention to depose Doe’s significant other (wrongly identified by Malibu as Doe’s wife). In person, at the deposition, the undersigned reiterated Doe’s objection to producing Doe’s significant other and indicated that no evidence exists as to infringement by Doe, such that testimony from any other person concerning same has no probative value and would be pursued only for purposes of harassment. Malibu’s counsel reiterated Malibu’s intention to depose Doe’s significant other and potentially other parties.

Likely soon-to-be jailed Prenda’s attorneys employed exactly the same approach: the crooks threatened to harass family and neighbors in a hope a reputation-wary innocent defendant would give up and pay the ransom.

 

Earlier Lipscomb/James tried to pull another Prenda-worthy sleaze: to make the judge sign grossly overboard “preservation order,” mainly aimed at greasing inevitable manufactured claims of spoliation if defendant wouldn’t settle and if no evidence of XArt’s obscenities would be found on his hard drive. Judge Forrest apparently saw the truth and denied this travesty. Also, the judge specified an unusually tight pre-trial schedule. She set 12/7/2015 as a trial date and explicitly said that “The Court is unlikely to adjourn the trial date.” The defendant is in good hands, so I don’t expect him to settle, and since Libscomb’s litigation strategy abuse of courts doesn’t have a room for jury trial, expect a dismissal any time soon.

Nearly every motion authored by Jason Sweet or Dan Booth is a treat. Once in a while the treat is so good I can’t help sharing the joy with others.

Booth Sweet fights two Ohio cases against Malibu Media/Lipscomb. I wrote about one of them — Malibu Media v. John Doe (OHSD 14-cv-00493). Certain interesting things happened since the last update.


Yousef Faroniya

After an Ohio Judge Timothy Black scolded the plaintiff for its sleazy litigation practices in two other OHSD cases back in May, the troll, represented by a young and sloppy lawyer Yousef Faroniya did what submissive puppies normally do: dropped belly up and peed on the floor. Not only were those two lawsuits voluntarily dismissed, but also the troll cut and ran from the instant case, which happened to land on the same judge’s docket¹. By “cut and ran” I mean a voluntary dismissal without prejudice, which usually leaves a defendant without a prospect of recovering attorney fees. The de-facto absence of any downside for the plaintiff and unconstitutionally high statutory damages are the main two reasons vermin such as M. Keith Lipscomb parasitize on the US judiciary.

However, usually doesn’t mean always, and thus Jason Sweet has asked the court to consider 28 U.S.C. § 19 sanctions, as well as to exercise its inherent sanction authority and punish Malibu Media and Yousef Faroniya for their frivolous conduct:

A court must temper a plaintiff’s right of voluntary dismissal with consequences when it used not in good faith, but rather as a tactical tool to frustrate due process and in such a way that prejudices a defendant’s rights.

Malibu of course disagreed, which prompted the defendant’s reply in support of sanctions — the subject of this story.

This reply is hilarious, and you should read it in its entirety. I only want to emphasize two points.

1

The Malibu Trolling Algorithm (aptly named “Greed over Guilt”) presented in this motion should be made a PowerPoint slide in the mandatory field manual for attorneys and judges exposed to the trolling virus:

  1. Use a sliver of evidence as the basis for suit and move for early discovery.
    [At which point, defendant is notified by his ISP of suit.]
  2. Wait for defendant or his counsel to initiate contact and inquire about a settlement.
    [Defendant is then notified of the statutory maximum and Plaintiff’s willing to settle for the minimum. Defendant is now faced with three choices: 1) financial ruin if he loses; 2) financial ruin and humiliation if he litigates; 3) fight.]
  3. If no settlement agreement is reached, amend the complaint to name the defendant.
    [Defendant, regardless of guilt, must now contend with the stress that friends, family or employers may stumble across this public filing]
  4. Move to extend the time to complete service repeatedly.
    [This serves two purposes in hopes of facilitating settlement: 1) to hang the suit over defendant’s head; and 2) to draw out defendant’s litigation expenses.]
  5. Serve the defendant. If defendant does not default, move on to discovery.
  6. Discovery tactics include: 1) move to extend the time to complete expert reports repeatedly; 2) depose neighbors.
    [Again, the extensions are to draw out the litigation. The depositions are to publicly shame a defendant.]
  7. Voluntarily dismiss the matter at any point before trial.

(In between 5 and 6 I would insert frivolous motions to strike the defendant’s affirmative defenses. These motions are filed in nearly 100% of cases after the defendant answers, and they have no purpose other than to multiply proceeds and delay an inevitable dismissal, thus buying more time to apply pressure.)

(In between 6 and 7 I would insert a slimy tactics of stretching the facts to accuse the defendant in spoliation and perjury if no X-Art’s obscenities were detected on the hard drives.)

2

The second important point is, as the headline states, a request to declare Malibu Media a vexatious litigant:

Included among the Court’s inherent authority is the ability to impose pre-filing restrictions on harassing and vexatious litigators. […] Plaintiff and its counsel have filed hundreds of cases, including this one, in this District alone. None have gone to trial. Rather, most are voluntarily dismissed or end in default judgments of one kind or another. More so, all are brought without regard to guilt, but rather to harass and extort settlement. Given the sheer volume of cases brought, this Court would be well within its power, should it chose, to declare Malibu Media to be a harassing and vexatious litigator and impose restrictions.

Hard to add anything and hard to disagree: I’m actually wondering why defense attorneys and judges didn’t consider protecting courts and public from the Malibu judicial plague this way.

Again, read the whole motion and enjoy:

 


¹ The troll also hastily dismissed MalibuMedia v Jablonski (OHSD 14-cv-00417) on 5/29/2015. In that case Judge Black issued OSC back in February, and the defendant accused Faroniya/Malibu in lying about the service.

I’m looking at the 8/28/2015 motion to show cause why a pro se defendant in Malibu Media v. Greg Weaver (FLMD 14-cv-01580) shouldn’t be held in contempt for violating Judge Thomas McCouns’ 7/23/2015 order directing the defendant to supply his hard drive for forensic examination. (The exhibit — email correspondence — is interesting too: it features a new name — Dwayne Denny, a forensic specialist from Tampa.)

While I don’t condone violations of judges’ orders, this particular situation is not as simple as it seems at the first glance.

Privacy matters

In order to protect people’s privacy, Eleventh Circuit has established case law aimed at curbing overboard, unrestricted discovery. In Malibu Media v. Roldan (FLMD 13-cv-03007), the very same judge granted the defendant’s motion for protective order and didn’t allow the plaintiff to access potentially sensitive defendant’s information:

[…] neither Federal Rule of Civil Procedure 34 nor governing Eleventh Circuit authority permit unrestricted access to a party’s database compilations and/or computer hard drives.

It will soon be a year since Malibu Media/X-Art filed a new lawsuit in Florida. There is more than one reason for what looks like trolls’ exodus from the Sunshine State. Clearly, a parasitic law firm Lipscomb, Eisenberg and Baker finds less and less love in its home state, and cautious Lipscomb apparently doesn’t want to piss off more judges. Yet, in my opinion, one of the biggest reasons of the said exodus is the above-mentioned state’s attitude towards unhindered fishing expeditions.

Note that such fishing expeditions are the only way for the troll to continue plundering the citizenry. As it becomes clearer and clearer, the king is naked: the Germans who de-facto steer US trolling operations simply do not possess any solid evidence of infringement. All they have is a single Bittorent transaction that corresponds to a wink-length piece of a film. No jury will find this to be sufficient to establish liability, and even conservative, somewhat pro-troll judges are skeptical.

That’s why the troll avoids jury trial at all costs.

Heads I win, tails you lose
Jessica Fernandez
Porn troll Jessica Fernandez

So, here is the dirty trick Keith Lipscomb relies upon to keep its money-making extortion machine going. First, the troll talks a defendant into producing his or her hard drives “for inspection.” If any traces of X-Art’s obscenities are found, the troll wins — it is hard to argue against such confirmation.

Conversely, what happens if no traces of porn in question are detected? A defendant loses anyway: Lipscomb will argue that any indication that any file was deleted (which is inevitable in the course of a normal computer use), even if it is recoverable, is perjury and spoliation. More pressure — more innocent people settle. This line of attack is pursued even if Lipscomb’s disgraced expert has to balance on the verge of perjury and contempt. Take Malibu Media v. Tashiro (INSD 13-cv-00205) for example: Paige falsely declared that deleting a folder in NTFS makes all the files in that folder non-recoverable. In another case, Paige outright violated the judge’s order and engaged in a fishing expedition hoping to find anything that can be leveraged to pressure the defendant into settlement; Paige found clearly inadmissible (and time-barred) evidence of alleged third party infringements and tried to use it against the defendant. The defendant fought back, and the troll ran away. In Malibu Media v. Raleigh (MIWD 13-cv-00360), Paige found the leaked Stratfor email database on the defendant’s hard drive, and, following Sony attorneys’ questionable quest to suppress the infamous leak, Lipscomb dishonestly claimed that it was illegal to obtain publicly available sensitive information: it is not by any stretch.

The list can go on and on, but the filthy pattern is obvious.

It is not unreasonable to assume that the majority of innocents who agree to open their drives for inspection are pretty sure that they would be cleared and their cases dismissed. They can’t be more wrong. The troll is here to part the weak from their money, not to seek justice.

Pitfalls of going pro se

So, getting back to our case… While yes, Judge McMacoun did order the defendant to produce his drive, the judge did it amid a lack of defendant’s resistance: we don’t see any motion for protective order opposing Lipscomb’s fishing attempt. Given the above-mentioned order in Roldan, I’m almost 100% sure that if the defendant fought back, he would have been able to secure a similar ruling and prevent Lipscomb from ransacking the defendant’s hard drive.

Neither do we see the defendant’s symmetric attempts to get information from the plaintiff. And XArt/Lipscomb has a lot to hide. Just look how Lipscomb stonewalls discovery in a similar ongoing FLSD case.

For example, in order to invoke the unclean hands defense, the defendant has the right to ask why X-Art owners filmed flicks such as “Get Wild At Home” or “A Hot Number” at their Marisol Malibu mansion in violation of the Ventura county’s statute, which provides for criminal penalties.

Discovery is supposed to be a two-way street, and the inequality of arms in this case is painful.

Granted, the defendant here seems to be educated and intelligent: his Answer to the complaint is well-researched and well-written (I especially liked the part about statutory damages as a proxy for actual ones — IMO, an undervalued and underused argument), yet Lipscomb is a sophisticated adversary, and a professional is needed to effectively counter the troll’s assault.

Update

9/2/2015

The defendant in this case hired the very capable Cynthia Conlin to protect his privacy. I don’t believe it’s a coincidence and happy that the publication of this story helped: things like this keep me going.

Although it may be technically too late, Conlin now tries to undo the damage the sleazeballs already done to an unrepresented layperson:

Having litigated virtually identical cases in this and other districts, Malibu Media’s attorneys know all too well that, within the Eleventh Circuit and in this Court, requests to image hard drives are not allowed.

[…]

It is true that a protective order must generally be filed prior to the expiration of the discovery period. However, the Court has discretion, and, when good cause is found, the Court can issue an order protecting a party despite a missed deadline. In particular, lenience is shown toward pro-se litigants.

 

Jason Aaron Kotzker

Colorado attorney Jason Aaron Kotzker filed about 450 shakedown lawsuits on behalf of a “barely legal” pornography purveyor X-Art/Malibu Media in New York and Colorado. In October 2014 he abruptly stopped working for the Miami Troll Central (Michael Keith Lipscomb and his firm — the people who, together with the German Mafia, steer thousands of similar extortion actions across the US). No new Malibu lawsuits were filed since then in Colorado (and Lipscomb currently employs another local attorney in New York). All but two Colorado lawsuits, COD 2013-cv-02385 and 2013-cv-03358 (I wrote about the latter case recently), are currently closed.

Apparently, in addition to scamming alleged file-sharers out of money, Kotzker ran another con, mugging the most needy — desperate people who lived from paycheck to paycheck and used payday loan services as a last resort to make ends meet.

According to the complaint filed on 8/7/2015 by the Federal Trade Commission (NVD 15-cv-01512), two entities that were largely controlled by Kotzker — Sequoia One LLC and Gen X Marketing Group LLC — had been knowingly selling consumer data to criminals:

From at least 2011 to at least 2013, Defendants operated as data brokers, collecting and selling sensitive consumer information from consumer payday loan applications to non-lenders.

In particular, Defendants sold this information to at least one non-lender, Ideal Financial Solutions, Inc. and its subsidiaries (collectively, “Ideal Financial”), knowing or having reason to know that Ideal Financial used the information to make unauthorized debits from the consumers’ bank accounts.

Washington Post wrote a story about this news on 8/12/2015:

The FTC said Sequoia One and Gen X Marketing Group, which both primarily operated out of Florida, supplied Ideal Financial with account information from at least 500,000 people who applied for payday loans, leading to more than $7 million being taken from those consumers’ bank accounts without their consent.

In addition to Kotzker, three other individuals were accused, but they have recently conditionally settled, apparently throwing their former brother-in-scams under the bus. While someone should repay those seven million dollars, The Washington Post doubts that those who were robbed will ever get their money back:

The Bartholomews agreed to settle with the FTC for $7.1 million but that will be suspended after they pay $15,000. McDonnell agreed to a $3.7 million settlement, but that is suspended because of his inability to pay. Although both judgments could be due immediately if the defendants misrepresented their financial status, it seems unlikely that consumers will be getting their money back through this case.

This is certainly a disbarment grade offence, and Mr. Kotzker deserves to lose his license, to be financially ruined and even criminally prosecuted (I wonder why this is a civil case to begin with). The only thing that doesn’t let my glee reign is the fact that Kozker has three kids, who are too young and innocent to realize how badly their father failed them.

FTC Press release

 

Malibu Media v. Michael Harrison (INSD 12-cv-01117) lasted for 3 years and amassed almost 400 documents — more than any other porn copyright trolling lawsuit by a large margin. Two weeks ago this case was moving full throttle towards a first jury trial of this kind¹ (set to take place in September). The defendant, represented by Gabriel Quearry, was bombarded by clusters of motions in limine. The entire Troll Central in Miami worked hard to bury the young attorney in paperwork. Not trusting his local Paul Nicoletti, Keith Lipscomb even took the matters in his own hands by appearing in a distant jurisdiction. According to Lipscomb, the evidence of the defendant’s guilt (including perjury and spoliation of evidence) was overwhelming.

And suddenly, on 8/11/2015 the case abruptly ended with a walk-away settlement (which means that both parties are left to bear their own fees and costs).

 

Those who follow tech media are aware of some of the recent developments. Ars Technica and TechDirt ridiculed some Malibu’s motions in limine — a lame attempt to keep the yet-to-be selected jury in the dark about the public’s not-so-flattering opinion about the porn shakedown business in general, as well as about the existence of this blog in particular (Die Troll Die’s too). The troll even moved to shield the jury from hearing certain unflattering terms (“copyright troll,” “extortionist,” and even “pornographer”), which was also widely ridiculed.

Earlier this year this case was also in the news: Magistrate Dinsmore surprisingly ruled that the defendant had destroyed his failed hard drive not in bad faith, thus no sanctionable spoliation took place².

On 7/20/2015 Lipscomb moved to sanction the defendant for his “proven perjury.” The troll claimed that

The version of Internet Evidence Finder Mr. Paige used at the time of his original examination was unable to parse out certain data such as shellbags and “jump list dest. list entries”. Using an updated version of the software, Mr. Paige located six (6) network storage locations (a/k/a drives) that were not identified or produced.

In other words, Lipscomb attempted to introduce new evidence on the eve of the trial, which is regarded as “litigation by ambush” and is universally frowned upon. The claim by a disgraced forensic expert Patrick Paige was also highly questionable: the software in question started supporting shellbags and jump lists a year ago: on 8/7/2014 and 6/18/2014 respectively. There is no explanation why Paige “found” new information just recently: this motion indeed looked like an ambush.

Why?

So why did Lipscomb and Co. abandon a seemingly strong case and forfeit hundreds of thousands in attorney fees, which would be undoubtedly awarded if the troll won the case?

While the exact answer to this question will probably never be known (due to usual settlement confidentiality), we have been watching these cases long enough to make an educated guess. In my opinion, Lipscomb was too scared to lose this lawsuit: such loss would definitely slow down his well-oiled extortion machine. In other words, a win in the jury trial lottery was far less valuable than the consequences of a loss.

While I don’t possess a magic crystal ball and can’t tell how the trial would play out, the prospect of Malibu’s loss was more than real: Indiana is a rather conservative state, and it is not unthinkable that a jury would find little love for an obscenity purveyor, especially the one involved in extortionate practices aimed to pad its already filthy wealth by driving struggling fellow middle class families into huge debt. Just look at Lipscomb’s word dance in his proposed jury selection questions.

The above-mentioned attempt to ambush the defendant with new evidence could also play a role. This “newly” discovered data didn’t produce any smoking gun: the plaintiff’s motion only alleged that the defendant was not truthful in his disclosures concerning his hard drives. However, no traces of Malibu’s obscenities were ever found.

So…

This event may be considered not so newsworthy by the media: I understand that stories about copyright troll asking not to be called “copyright troll” generate more interest. However, to those people who closely follow the developments in the US copyright trolling landscape it is huge news.

Essentially, the most prolific copyright troll in the US history agreed to the critics’ accusation that it has absolutely no intention to try thousands of its shakedown cases in front of a jury, and uses (read: abuses) US courts solely as a part of the money-making machine. Not really news, but this bold confirmation is very important.

Some judges understand what’s going on, yet, alas, a critical mass is nowhere near. I’m sure it’s a matter of time. It took four years for IARDC to start the proceeds against Prenda. Guardaley trolls (including Lipscomb/Malibu Media) are more cautious, and while they are not really different from Prenda, generally they don’t resort to outright fraud, so, unfortunately, it will take much more time to eradicate this particular species of parasites.

Last but not least

In one of the status reports (can’t currently locate) Lipscomb/Nicoletti called the defense attorney Gabe Quearry “difficult” and “unreasonable.” Normally, these words have a negative connotation, but not in this case: “reasonable” in Lipscomb’s vocabulary evidently means cooperating with his racket by talking a client into settling. It is my strong belief that “difficult” people (in this sense) are those who cause the change for the better: Gabe Quearry chose to fight for his client and the cause, and made this world a better place. Not that the price was low: of course three years of unneeded stress left scars — both emotional and financial. I wish Gabe and Michael all the best.

Coverage

 


¹ Lipscomb touts so-called “Bellwether trial” as a valid precedent, “the first Bittorent case that was tried.” This is beyond laughable. I don’t know any attorney (except for the trolls) who took this de facto settlement conference seriously: all the defendants settled prior to what was formally a bench trial, no cross-examination of witnesses took place… Two years later Lipscomb threw a couple of bones to then defense attorney A. Jordan Rushie, apparently for not interfering with this miscarriage of justice. It was clearly a show directed by Lipscomb, and it was aimed at ramping up future settlement demands. Even judges have been scoffing at this travesty.

² Three months ago Magistrate Dinsmore ruled the opposite way in Malibu Media v. Tashiro (INSD 13-cv-00205), finding that spoliation did occur, which led to a default judgment — a rare remedy in an actively litigated case. Lipscomb is now asking for $630,000 in damages (no, it was not a typo). As a result, the family of a nurse and a sales manager is being driven into bankruptcy by a stone-hearted obscenity purveyor, a pathological liar and a law breaker Colette Field, who claims that “We do not want to cause anyone hardship.”

Finally…

John Steele
John Steele

Today Jerome Larkin, Administrator of the Attorney Registration and Disciplinary Commission of the Supreme Court of Illinois, via Counsel Wendy J. Muchman and Marita C. Sullivan, filed a seven-count, 14,000-word complaint against Prenda’s John Steele alleging massive professional misconduct and fraud on the Court (the word “fraud” is used 17 times throughout the document).

I don’t want to go over the complaint — in part because there is nothing new and revealing to anyone who follows the Prenda saga, and also because the tech media will certainly report about this development soon.

What I want to stress is that Malibu Media/X-Art and other copyright trolls who continue abusing the law and plunder US citizens are not that much better than Prenda. Yes, they do not defraud the courts as brazenly as Steele and Hansmeier did (although some scams as Crystal Bay Corporation or Good Man Productions certainly deserve attention from both professional disciplinary bodies and the DOJ). However, the common denominator of their harmful activities is immediately obvious to anyone with IQ greater than 70.

I hope to live long enough to witness similar disciplinary actions against Keith Lipscomb, Michael Hierl, Ira Siegel, and other parasites.

 

Coverage

A little more persistence, a little more effort, and what seemed hopeless failure may turn to glorious success.

Elbert Hubbard

 

Copyright trolling is not a harmless phenomenon; hence it is usually not a joking matter. However, an essential feature of the society’s immune system is people not being serious amid desperation. That’s why I simply can’t help sharing some hilarious moments that I discover while browsing mostly gravely boring dockets.

1

In one of recent single-defendant non-porn Lipscom’b cases initiated “on behalf” of a Prenda-like shell plaintiff of questionable legitimacy (Poplar Oaks v. John Doe, FLSD 15-cv-60281), the defendant decided to file a “protective motion to quash or vacate the Subpoena” on 4/1/2015:

 

As you see, not only this legally illiterate document had nearly zero chances of success, the defendant signed it with his actual name, totally defeating the purpose of such motion. Alas, it is not an exception: laypeople often don’t realize that absent proper protective order/motion to seal, everything they send to the court (including envelopes) will likely be publicly filed.

Keith Lipscomb, together with one of his minions (Jason Cooper), filed a serious 3-page memorandum in opposition. Not surprisingly, Judge William J. Zloch outright denied the defendant’s MTQ on 4/28:

 

2

The defendant didn’t like it, and on 5/11 he decided to try and convince the judge one more time using exactly the same text.

The troll was slightly annoyed:

Either Defendant’s Motion at CM/ECF 11 was filed in error or Defendant is attempting to get a second bite at the apple by re-filing the exact same Motion this Court previously denied. Defendant previously filed the exact same Motion on April 1, 2015. See CM/ECF 7. Plaintiff responded on April 24, 2015. See CM/ECF 8. On April 28, 2015, the Court denied Defendant’s Motion. See CM/ECF 10. Defendant’s re-filed identical Motion is improper and should be stricken.

On 5/27 the judge, however, rather than striking the second MTQ, simply denied it… using exactly the same language as in his previous order.

3

The defendant thought it was unfair that his thoroughly written motion was denied again and decided to give it another try on 6/15 (needless to say, the text didn’t change).

William Zloch
US Federal Judge
William J. Zloch

At this moment we must realize that Judge Zloch does possess a strong sense of humor, as in his 6/30 order denying the third MTQ, he again used exactly the same language.

4

“It must be a misunderstanding!” — thought the defendant, filing the very same text (the fourth MTQ) on 7/13.

“No,” said the judge, returning the ball with an elegant, reflexive racquet swing (7/15: the text is identical to his previous three orders).

 

Lipscomb, who is unquestionably spoiled by his victims’ predictable reactions (the majority either pay the ransom or ignore), apparently suffered from an acute cognitive dissonance, became depressed, and on 7/24 voluntarily dismissed the case without prejudice.

A mandatory cliché “which means that the plaintiff can re-file the case” is expected to accompany “without prejudice.” Well, the troll certainly can refile, but he never will, even to give everyone another chance to enjoy defendant’s outstanding persistence: Lipscomb is a man of many virtues, but sense of humor, alas, is not one of them.

5

In the meantime, the defendant already hinted that initiating a new case against him would be futile — by preemptively filing a fifth identical MTQ on 7/27, this time after this case was dismissed for good.

To sum up: it is wrong always, everywhere, and for anyone, to believe anything upon insufficient evidence.

William Kingdon Clifford

 

In myriads of Bittorent cases across the country, copyright trolls tout a couple of Bittorent transactions registered by an unlicensed German investigator Guardaley/IPP International/Excipio as a “smoking gun” kind of a proof, but Colorado Magistrate Michael E. Hegarty doesn’t think it is enough to establish liability.

Michael E. Hegarty
US Magistrate Judge
Michael E. Hegarty

A month ago Judge Hegarty recommended granting in part and denying in part plaintiff’s motion for summary judgment in Malibu Media v. Justin Winkler, COD 13-cv-03358, where the judge suggested that Malibu needed more evidence.

In my opinion, this recommendation is significant for defense attorneys and pro se defendants not only in Malibu cases, but in all the other Bittorent lawsuits, especially in numerous instances, where forensic examination of defendants’ hard drives yielded no traces of XArt’s smut. Because

Although Plaintiff appears to argue that it has demonstrated direct proof that Defendant copied its films, it is unclear whether the evidence demonstrates that the entirety of each film was copied onto Defendant’s computer. That is, Mr. Patzer (who designed, implemented, maintained and monitored the data collection system used to identify IP addresses that have allegedly committed infringement via the BitTorrent protocol) attests that

[…]

27. Only 1 PCAP per movie infringed is produced to the Plaintiff usually. 1 PCAP per movie is sufficient to prove without question that the infringement of each of the movies at issue occurred. Producing all PCAPs for each of the infringed movies would be superfluous and extremely time consuming.

Accordingly, the PCAPs at issue here contain “pieces” of the Plaintiff’s movies. Mr. Patzer does not explain why one PCAP is “sufficient to prove” Defendant copied the entire film and why producing all PCAPs would be superfluous.

In other words, to establish no genuine issue of material fact (the essence of summary judgment), Malibu needs more evidence. So, Judge Hegarty examined if there is an indirect proof of infringement:

Accordingly, the Court looks to whether Plaintiff can prove copying indirectly “by establishing that [Defendant] had access to the copyrighted work and that there are probative similarities between the copyrighted material and the allegedly copied material.”

In this particular case, the plaintiff’s expert Partick Paige examined the defendant’s hard drive and found traces of 28 of the 39 films listed in the complaint. The judge agreed that in respect to these 28 flicks, the proof of liability, albeit indirect, is strong enough, and if only those 28 were at issue, the motion for summary judgment would be certainly granted, and there would be no need to proceed to a jury trial.

However, with respect to the remaining 11 titles, there is no even indirect proof of infringement, so the judge felt he didn’t have the right to usurp a jury’s prerogative of decision.

Some attorneys already recognized the importance of this development: on 7/23/2015, Jonathan Phillips noticed this recommendation in an eventful ILND 13-cv-06312 case.

Guardaley and Keith Lipscomb (via their local Jason Kotzker), were shaking down Colorado residents rather seamlessly for years, in part because Judge Hegarty (who was de facto the only judge handling Bittorent lawsuits in Colorado) kept rubberstamping Malibu’s ex parte discovery motions and was generally pro-plaintiff. Thus, this kind of judge’s finding that Guardaley/IPP’s recorded transactions are simply not enough to proof infringement is especially noteworthy.

 

Neither plaintiff nor defendant objected, so on 7/14/2015, Judge Wiley Y. Daniel adopted the recommendation of the magistrate.

Thanks to Raul for the heads up.

Five months ago I wrote about a lawsuit against an infamous copyright troll Rightscorp, filed by two Georgia residents who were harassed with repeated robocalls and text messages to their cell phones without consent, which is a clear cut violation of the Telephone Consumer Protection Act (Melissa Brown and Ben Jenkins v. Righscorp, Inc. et al, GAMD 15-cv-00012). The Act provides a relief to victims: $500 penalty for each violation. Plaintiffs, represented by Sergei Lemberg, didn’t specify the exact number of alleged violations (presumably many), but asked a trebled penalty for each instance ($1,500).

On 5/8/2015 Rightscorp, represented by attorney Michael O. Crain, answered to the complaint, denying any wrongdoing¹. This is laughable as I can’t imagine a shortage of witnesses who can testify under oath about similar harassment.

What’s more laughable is the affirmative defenses Rightscorp threw at the wall. While the majority of its eleven defenses are questionable enough, the defenses 3-6 attack the law itself, claiming that TCPA is unconstitutional, namely it violates the First, Fifth, Fourteenth, and Eighth Amendments. Why is it so, Rightscorp doesn’t say.

Good luck with that.

 

(I bet if the Eighteenth Amendment wasn’t repealed, Rightscorp’s victims might reply in the same manner, claiming that defendant’s ridiculous claims were made under unconstitutional influence.)

Attempt to delay the comeuppance failed

One month earlier, on 4/10/2015, Rightscorp tried to stay this case pending the outcome of the anticipated motion for certification in the TCPA class action filed in California by Morgan Pietz last November (Blaha et al v. Rightscorp, Inc., et al, CACD 14-cv-09032). Rightscorp speculated that these lawsuits overlap and the plaintiffs would be a part of the class. The plaintiff responded on 5/01/2015: “no, they wouldn’t”:

Resolution of the instant motion is relatively straightforward: Plaintiffs unequivocally opt out of any class certified in Blaha. No class has been certified in Blaha. Whether one will be certified is entirely speculative. If one is certified at some later date, Plaintiffs have a due process right to opt out of any class and pursue their own claims against Rightscorp. See Fed. R. Civ. P. 23(c)(2)(v) (Rule 23(b)(3) class members must be permitted opportunity to exclude themselves); […] Plaintiffs opt out, they do not consent to have their claims against Rightscorp be decided in a class action where they would likely recover less then as individual plaintiffs and they do not wish to cede control of their claims to individuals and attorneys with whom they have no relationship. Because Plaintiffs opt-opt out of any class resolution, there is no ground to stay the case here.

It is wide known that “litigation by delay” is inherent to copyright trolling, and Rightscorp is not spared:

Rightscorp wants a stay because it, apparently, is being repeatedly sued for serial violations of the Telephone Consumer Protection Act and wants to limit its exposure by delaying cases and forcing Plaintiffs here to join a class action of which they want no part. With all due respect to Rightscorp, that it is involved in litigation in another jurisdiction for engaging in similar unlawful behavior is not this Court’s or Plaintiffs’ concern nor is it grounds to stay this case.

Yesterday Judge Charles Ashley Royal agreed with the plaintiffs (a promise to opt out of the class was fatal to the delay attempt) and thoroughly denied Rightscorp’s motion:

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¹ I somewhat agree with the defendant pointing to vagueness: indeed, the complaint would be way stronger if it itemized the violations, or at least specified how many times Rightscorp robocalled to its victims.

When a porn copyright shakedown factory Malibu Media / X-Art resumed its operations in New York after a two-year hiatus, it raised many brows because this state has proven to be very hostile to copyright trolls in the past: to my understanding, in 2012 New York Southern and Eastern districts amassed the largest number of court rulings scolding trolls one way or another.

Astonishingly, this time the troll lawyers (Lipscomb, Eisenberg and Baker, via a local Jacqueline M. James) managed to stay afloat and fleece New York citizens for almost a year, with very few setbacks. To date, Malibu Media filed 253 cases (NYSD: 200, NYED: 53).

Alvin K. Hellerstein
US Federal Judge
Alvin K. Hellerstein

This may change after today’s Order and Opinion issued by a district judge Alvin K. Hellerstein in Malibu Media v. John Doe (NYSD 15-cv-04369). Malibu’s motion for ex parte early discovery was denied, thus the case was effectively dismissed.

This order was built upon findings and opinions by other judges, and it is both significant and unique because of the number of citations from troll-busting New York, Wisconsin and Ohio rulings.

Citing a wide known “Copyright Trolling, An Empirical Study” by a Chicago law professor Matthew Sag, the judge started with describing the trolls’ modus operandi:

Recent empirical studies show that the field of copyright litigation is increasingly being overtaken by “copyright trolls,” roughly defined as plaintiffs who are “more focused on the business of litigation than on selling a product or service or licensing their [copyrights] to third parties to sell a product or service.”

Quoting last month’s OSC by an OHSD Judge Timothy Black, Judge Hellerstein effectively called Malibu “copyright troll,” despite Lipscomb’s comical effort to deny the obvious.

And after stating that

In 2012, judges in the Southern District and across the country began awakening to the danger of copyright trolls, especially in the context of pornography,

Judge Hellerstein continued with the most damning quotes from orders by judges Marrero, McMahon, Baer, Brown, Fox, Black, Oetken, Conley, Randa and others. Again, I never saw an order based on such a thorough research. (We covered the majority of the cases cited in this order — follow the links in the previous sentence.)

In denying Malibu’s motion for ex parte discovery, the judge analyzed the factors allowing this type of exceptional relief, and in the judge’s opinion, none of these factors were favorable to Malibu: a nice reminder that the phrases “ex parte discovery” and “rubber stamp” are spelled differently.

Citing Judges Marrero and Oetken, Judge Hellerstein time and again reiterated the simple fact that an IP address is not equal to a person, thus concluding that Malibu didn’t show a prima facie claim:

[t]he fact that a copyrighted work was illegally downloaded from a certain IP address does not necessarily mean that the owner of that IP address was the infringer. Indeed, the true infringer could just as easily be a third party who had access to the internet connection, such as a son or daughter, houseguest, neighbor, or customer of a business offering internet connection.

Moreover,

And even if Plaintiff could definitively trace the BitTorrent activity in question to the IP-registrant, Malibu conspicuously fails to present any evidence that John Doe either uploaded, downloaded, or even possessed a complete copyrighted video file.

Finally, Plaintiffs assertion that there is no alternative means of obtaining the desired information is inadequate. The only support for it comes from the declaration of Patrick Paige who, as Magistrate Judge Fox found in a different case, lacks personal knowledge of the methodology used by ISPs to match the IP address with its registrant. […] The Paige declaration that Judge Fox found deficient nearly three months ago is identical to the Paige declaration submitted in support of this motion. It fares no better this time.

The judge didn’t forget about the most egregious troll’s conduct, specifically:

When courts have attempted to place restrictions on the subpoena to prevent Malibu from abusing the process to extort defendants, Malibu has flagrantly disregarded them. For example, after one court issued “two orders unambiguously ordering [Malibu] to file [the identified IP-registrant’s name] under seal,” Malibu filed it publicly anyway. […].

And in the Eastern District of New York, Magistrate Judge Gary Brown took additional precautions to protect John Doe’s identity by explicitly instructing that “the subpoenaed information be sent directly to the Court, ex parte and under seal.” Patrick Collins, Inc. v. Doe 1 […]. Malibu instead served subpoenas that requested the identifying information be sent directly to Plaintiffs counsel.

The conclusion was devastating to the plaintiff (emphasis is mine):

In light of Malibu’s history of abuse of court process and its failure to show “good cause,” I decline to give it the benefit of an exception to the normal rules of discovery. Plaintiff’s motion for leave to serve a subpoena on Time Warner Cable is denied. The case will proceed in normal fashion.

I really hope that other New York Judges will adopt this extremely well-researched opinion and oust the abuser from their state, this time for good:

 

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