Posts Tagged ‘Copyright’

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”!.

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.

 

Illinois citizens are “blessed” with high taxes, high crime rate, and nasty winters. As it is not enough, Illinois is also a troll heaven. According to a recent paper by a law professor Matthew Sag,

…the Northern District of Illinois is the clear leader in pornography related copyright trolling.

After Prenda’s spectacular downfall, currently the most brazen copyright troll Mafia is run by a Miami attorney Michael Keith Lipscomb and his “client,” a teen hardcore pornography producer X-Art / Malibu Media. Lipscomb’s tentacles reach many states — those states where he was able to hire some local scum. Like Paul Nicoletti in Michigan or Mary K. Schulz in Illinois.

Thanks to Raul, who discovered the following astonishing douchebaggery: with so many abusive lawsuits going on concurrently, this despicable event managed to fly under our radar.

So, this is what happened on 10/17/2013 (Malibu Media v. John Doe, NDIL 13-cv-07136):

 


Federal Judge
Marvin Aspen

On 10/25/2013 Magistrate Jeffery Cole issued an order to show cause “why a recommendation should not be made to Judge Aspen that she be held in contempt for her use of an epithet directed at the court while she was still in the courtroom.“:

MINUTE entry before Honorable Jeffrey Cole: Mary Kay Schultz is ordered to appear at 8:00 a.m. 10/28/13 in courtroom 1003 and show cause why a recommendation should not be made to Judge Aspen that she be held in contempt for her use of an epithet directed at the court while she was still in the courtroom. The facts surrounding what occurred are set forth below. On 10/9/13 the plaintiff filed a motion in front of Judge Aspen for leave to file a third-party subpoena prior to a Rule 26 conference. [#3]. Judge Aspen referred the matter here. The motion was printed on both sides of the page and its 4 exhibits were not separated by protruding tabs. The double sided printing and the absence of protruding tabs were both violative of our Local Rules. Since the motion by its nature was unopposed and since the lawyer presenting the motion was from Geneva, Illinois, I chose to exercise my discretion and disregarded these Rule violations. Schlacher v. Law Offices of Phillip J. Rotche & Associates, P.C., 574 F.3d 852, 859 (7th Cir. 2009). The motion did not have attached to it the proposed subpoena — an omission I did not notice at the time. The motion also provided that a proposed order was attached for the court’s convenience. No proposed order was attached as an exhibit to the materials sent down by Judge Aspen which presumably was the courtesy copy provided to Judge Aspen pursuant to Local Rule 5.2(f). If a courtesy copy was not provided that is a third Local Rule violation in connection with this motion. A review of the docket conducted after counsel left the courtroom revealed a proposed order which permits the plaintiff to serve a subpoena on Comcast Cable requiring that the plaintiff be provided with the name, address, telephone number and email address of the defendant to whom the ISP address but does not have attached the proposed subpoena, itself. In any event, the motion was granted. The plaintiff then requested permission to provide a draft order — presumably the proposed order that was filed on the docket and that the motion represented was attached “for the court’s convenience” but which in fact was not attached to the motion. The plaintiff’s lawyer asked to submit a draft order and I expressed the view that the minute order granting the motion would suffice to enable her to obtain the information she wanted. It was apparent that the plaintiff’s lawyer didn’t agree with my conclusion. In any event, as she was gathering her belongings at the counsel table, mouthed or said sotto voce to a person in the courtroom,”What an asshole.” Mailed notice (jms, ) (Entered: 10/25/2013)

Here is the minute entry from the show cause hearing held on 10/28/2014:

MINUTE entry before Honorable Jeffrey Cole:Show cause hearing held. Plaintiffs counsel appears pursuant to the order of 10/25/13 10 requiring that she show cause why she should not be held in contempt for the statement reflected in that order that was made in court on 10/25/13. When asked whether she denied making the statement reflected in the order of 10/25/13, she did not deny it, merely saying that she could not remember the exact words she used. But she went on to say that it was a comment made out of frustration that my mother would not approve of. (The lawyer was not content with my having merely entered a minute order granting her motion for leave to issue a subpoena to Comcast). When asked what her position was, plaintiffs counsel responded, whatever I said was not contempt. She was unapologetic in any way, insisting that I and my staff were out of the courtroom. That was not true. The statement was made to Paul Mosser, who was sitting in the front of the courtroom the entire time and was clearly in her line of sight. Mr. Mosser is a law student who is currently serving in my chambers as an extern. When asked if she thought that what she did in the courtroom in the presence of another person was appropriate, or whether she thought it was permissible to conduct herself as she did, her only response was that what she did was not contempt. At that point it was apparent that the plaintiffs lawyer had no contrition about her conduct and wanted to pursue the matter as a purely legal question of whether what she did constituted contempt. Consequently, plaintiffs lawyer is given 14 days to file a brief in response to the rule to show cause. The case is set for further status on 11/18/13 at 9:30 a.m.Mailed notice (jms, ) (Entered: 10/28/2013)

Subsequent hearing dates were postponed multiple times, and finally the entire lawsuit was dismissed with leave to reinstate by 5/6/14.

I really doubt that Schulz will re-file: she already ran like a petty thief from impending sanctions in Malibu Media v. John Doe, NDIL 13-cv-50286 (after two sanctions in Wisconsin, where, by the way, her license is invalid, and was invalid during her trolling there).

I just tried (and failed) to imagine if any defense attorney I communicate with could behave the same way. Unthinkable. Seemingly, it comes with the territory: if one is capable of participating in an extortion racket — wrestling money over illegally produced “barely legal” pornography, expect her to have a secret interpretation of the term “ethics,” an interpretation that would leave 99% of population speechless. And disgusted.

Poll!

Haven’t been conducted polls for a while. So,

 

If you never heard about Malibu Media v. Pelizzo (FLSD 12-cv-22768), you should read this post. Warning: you may want to take an emergency shower afterwards.

A couple of back-and-forth arguments were filed in July and August 2013. One thing I want to note is Lipscomb’s explanation of his revolting conduct:

On March 21, 2013, in response to the walk-away offer, Defendant demanded $17,500 for attorneys’ fees. See Ex. N. Shocked by the clearly excessive fees and admittedly peeved, within a half hour, undersigned replied with two knee-jerk e-mails: (a) rejecting the demand and (b) indicating Plaintiff would pursue the case. Simultaneously, paralegals were instructed to propound discovery. Undersigned cooled quickly. And, at the mediation less than two weeks later, undersigned again advised Defendant that Malibu would be dismissing the case.

Well, if a knee-jerk reaction of a purported officer of the court is to threaten to ruin the life of a defendant, his license should be revoked immediately.


Magistrate Judge
Andrea Simonton

On 2/18/2014, Magistrate Andrea Simonton issued her report and recommendation in this case. I have mixed feelings about it.

This report has two parts. In the first part, the judge recommends not to award fees to the defendant under the Copyright title (17 U.S.C. § 505). Judge dedicates 7 pages to analyzing the Fogerty factors and concludes that Lipscomb did not bring this lawsuit in bad faith. Sounds unbelievable, but copyright law is so screwed, it makes such Kafkaesque conclusions possible.

I read one attorney’s opinion suggesting that Magistrate’s analysis of Fogarty factors was wrong, and Patricia Seitz (a district judge in charge of this case) may rule differently. Let’s hope for that.

The second part of the R&R makes up for the first: it does not deal with copyright, but solely with Lipscomb’s disgusting behavior. Judge recommends awarding attorney fees under 28 U.S.C. § 1927 because

Plaintiff’s counsel had just offered to voluntarily dismiss the claim against Defendant when he sent the email threatening protracted, future litigation. That alone would have been sufficient to award sanctions, but Plaintiff’s counsel also asked defense counsel to inform his client that he would be penniless at the conclusion of this case while also owing Plaintiff hundreds of thousands of dollars. The litigation tactics of Plaintiff’s counsel amount to more than a lack of professional civility and reveals a pattern of behavior, albeit for a short period of time, that perpetuates “stereotyped caricatures of attorneys held by some members of the public.” Threatening continued, meritless litigation and financial ruin is the definition of bad faith.

The recommended amount is $6,815.50. Again, let’s hope that Judge Seitz (who has a history of smacking Lipscomb’s role model, Prenda Law) will apply a punitive multiplier: Pelizzo and his attorney Francisco Ferreiro deserve to be compensated for dealing with one of the most nauseating shakedown lawsuit cartels.

While monetarily $7K is just a slight slap on the wrist, it is yet another hole in Lipscomb’s cover of legitimacy: those holes never disappear, and sooner or later will contribute to the downfall of the dreadful shakedown enterprise.

 

In other news from the Sunshine State

In my previous post I covered FLSD Chief Judge’s denial of Lipscomb’s motion for ex-parte discovery. I have an impression that Miami, Lipscomb’s own backyard, becomes more and more hostile to him:

  • On 2/2/2014 another FLSD judge, Magistrate Frank Lynch, also denied Lipscomb’s motion for ex-parte discovery. The reason is untimely copyright registrations (Malibu Media v. John Doe, FLSD 13-cv-14458).
  • On 2/12/2014 Judge Ursula Unagro denied Lipscomb’s routine motion for extension of time to serve the defendant and closed the case (Malibu Media v. John Doe, FLSD 13-cv-23714). Note that in the past judges rubber-stamp granted such requests.

 

Update: case closed

On 3/28/2014 Judge Patricia Sietz adopted Magstrate’s recommendations, overruling defense objections, and closed the case.

Although I disappointed that the outcome was too mild for Lipscomb ($6,815.50 is a pocket change for him, less than a typical settlement amount), it was a close call, and if Justice is more than a word, he will pay daringly for all the suffering he caused.

It was a close call indeed:

It appears that Plaintif;s Counsel has accepted this opportunity to improve his approach to conflicts in this and future cases.The Court expects that Counsel’s future conduct will exhibit the highest levels of professionalism. If not, he does so at his own peril. Let this case be a learning experience for all involved.

 

Copyright troll M. Keith Lipscomb and his network of local attorneys filed 170 cases on behalf of Malibu Media in 2014 so far:

 


US Federal Judge
Federico A. Moreno

It is funny that in Lipscomb’s own backyard, Southern District of Florida, the scythe ran into a stone, and his attempt to obtain identifying information of an alleged infringer has failed: Judge Federico Moreno was apparently irritated when he denied Lipscomb’s ex-parte motion to leave to serve third party subpoenas prior to the Rule 26(f) conference (Malibu Media v. John Doe, FLSD 14-cv-20216).

Calling out Lipscomb for his lame lawyering (failure to cite any binding case law in support of early discovery), the judge concluded that

Plaintiff has not provided this Court with “good cause” to deviate from Rule 26(d).

Moreover (and heartwarming), Judge Moreno makes it clear that he is aware of Lipscomb’s industrial-scale litigation¹, and the judge cited Judge Wright’s famous order:

“The federal courts are not cogs in a plaintiff’s copyright-enforcement business model.” Malibu Media, LLC v. John Does 1-10, 2012 W L 5382304 at *4 (C.D.Cal. June 27, 2012). Plaintiff has filed what amounts to a boilerplate brief to support its motion. The arguments made in this brief do not persuade the Court to deviate from the normal application of Rule 26. Therefore, Plaintiffs Motion for Leave to Serve a Third Party Subpoena Prior to a Rule 26(f) Conference (D.E. No. 4), filed on January 27, 2014 is DENIED.

 

I’m not sure if Lipscomb will be able to file these half-assed cases in FLSD anymore after such a bold hint to get lost. From the district’s chief judge, no less. However… Mr. Lipscomb’s hubris and greed may prompt him to stubbornly continue his shakedown practice. Well, succumbing to those “virtues” played well for John Steele. Go ahead, Keith, dig deeper.

Related
Update

1/24/2014

This order was noted by a Doe Defender Paul Overhauser in Malibu Media v. John Doe (INSD 13-cv-01525 — I recently covered this case) as an additional authority for the Motion to Quash Subpoena.

Update

4/4/2014

On 4/4/2014, following Judge Ungaro’s order that caused significant resonance in the media, Judge Moreno 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.” Response is due on April 14th.

 


¹ I love this phrase, which was introduced by Morgan Pietz.

A community member, who prefers not to reveal his name at this time, wrote this thorough analysis of a recent pseudo-technical Malibu’s missive. I think it is very good and will help defense attorneys.

Sentence-by-sentence analysis of Nicoletti on IPP
Judge Frederick Kapala

On February 6 Paul Nicoletti filed a response to a defendant’s motion to compel (embedded below). The defendant in this case (Malibu Media v Hind, et al, INSD 12-cv-01117) demanded that Malibu hand over, among other things, the PCAP files that IPP collected. The section at III(A)(1), “The Nature of IPP’s Evidence” (starting at page 4) is possibly the most detailed description yet of precisely what IPP does — and what they have to hide. Here I go through sentence by sentence, explaining what the significance of each sentence is.

IPP establishes a direct TCP/IP connection with a computer that is distributing a “piece” of Plaintiff’s copyrighted work.

Nothing terribly controversial here. The use of the term “direct” is somewhat odd — the IPP servers most certainly do not have a direct physical connection to the defendant in question. On the networking front, assuming that Nicoletti isn’t just an attorney far out of his element and making stuff up, we are apparently to conclude that IPP does not make use of proxies or VPNs. (This will be important later.) TCP/IP is only mentioned to lend the sentence a false air of technical gravitas.

Note that it is never mentioned precisely how IPP finds this computer…

The “piece” is a packet of data. The packet of data correlates to Plaintiff’s copyrighted work because it has a unique cryptographic hash value.

Here Nicoletti trips up. Yes, each BitTorrent piece is accompanied by a cryptographic hash. (In traditional BitTorrent, these hashes are in the .torrent file.) However the only thing that can be calculated is whether the downloaded piece is what the .torrent file describes.

There is no way any investigator could a priori say that because the piece corresponds to its hash that it corresponds to a portion of an X-Art movie. In fact, downloading the entire torrent from the defendant and hashing it would not help; the video file spread on BitTorrent would generally not be identical to the file sold by X-Art¹. This is why Tobias Fieser declared in 2012 — in what I can only assume was a poor attempt at a joke — that after the torrent was downloaded from a host he would sit down and watch the whole thing side-by-side with a copy of the movie provided courtesy of X-Art.

Again, Nicoletti uses big technical-sounding words to mask the fact that he has no idea what he’s saying. Spoiler alert: this will be a recurring theme going forward.

Cryptographic hash values act as digital fingerprints. They are long alpha-numeric codes.

They’re binary (hexadecimal when displayed), Nicoletti, not alphanumeric.

Via the algorithms governing the hash system, hash values are capable of being calculated with the type of mathematical certainty and precision as 2 plus 2 equals 4.

This is largely meaningless chest-pounding. He is trying to convince a non-technical audience that the existence of cryptographic hashes is incontrovertible (“mathematical”, even!) evidence of infringement. The argument does not hold water. In fact, there is no argument there, just rhetoric and fluff.

Next paragraph.

IPP servers are synchronized to both an atomic clock and GPS clock.

This just refers to NTP; Tobi Fieser has said so before. It means that their servers’ clocks can be considered somewhat accurate (in Fieser’s own words, to about 1/10 s). This is so the logs have the correct time. This is standard practice for pretty much every server in the world.

Now we finally get to the meat of the matter: the PCAP files. Nicoletti:

IPP logs transactions between its servers and a person distributing a piece of a copyrighted work on a log file. Each transaction is saved in what is called a PCAP. A PCAP is an electronic recording of the transaction. It is analogous to a video recording. The software that IPP uses to create PCAPs is called TCPDump. TCPDump is one of a handful of widely recognized forensically sound Packet Analyzers. It is an open source free software program.

A “PCAP”, i.e. packet capture, is not analogous to a video recording. It would be more like the results of a wiretap. (In fact, a packet capture is precisely that: a recording of every packet of internet traffic going in and out of a computer.) Regarding tcpdump (properly all lowercase), yes, it is a venerable piece of software whose reliability is beyond reproach, but there’s nothing “forensically sound” about it. Not sure what it being open source has to do with anything.

It turns out that Nicoletti’s exposition is also bad, so let’s skip ahead a bit…

PCAP files can be read by anyone with the equipment to read them. The information contained in them can also be converted to word documents. The PCAPs speak for themselves and conclusively establish that the infringing transaction occurred. IPP charges Plaintiff to produce PCAP files. At trial, Plaintiff intends to introduce one PCAP file for each copyrighted work as well as the log files associated with the Defendant. Put another way, Plaintiff does not intend to introduce the thousands of PCAP files that evidence each infringing transaction committed by Defendant. That evidence is contained in the log file which, as previously stated, is also simultaneously created and saved in the same way that the PCAPs are created. To be clear, Plaintiff will produce to Defendant everything that it intends to introduce at trial. And, Defendant can subpoena IPP to produce any other evidence that Defendant wants from IPP.

You might have noticed that IPP really, really doesn’t want the PCAP files published. Why? Let us back up and cover what we skipped to find out:

Each PCAP covering each transaction is stored on a WORM tape drive. So too is the MySQL database log file to which the PCAP correlates. WORM stands for “write once, read many.” IPP uses a WORM drive because it is impossible to modify data after it is written onto a WORM drive. In addition, it is impossible to delete any data, outside of destroying the tape drive itself. Additionally, within twenty-four hours of a PCAP file’s creation, a German government-issued time stamp is placed on the WORM drive.

Now the reason is laid bare. The “German government-issued time stamp” is a requirement under the German Digital Signature Act. (There is no corresponding requirement under US law.) I have to correct Nicoletti once more—the timestamps (formally, Qualifizierte Zeitstempel, ”qualified timestamps”) are not issued by the German government, but by approved private “certifiers”. The function of the timestamp is to certify that some file existed at a particular time (the time of submission to the certifier).

Given a file and its qualified timestamp (in reality, a digital signature), you can confirm that the file you have been given is the same one that was submitted to the timestamper at the listed time. The problem is this: you cannot modify the file at all, even innocuously, otherwise this timestamp confirmation process will fail.

Why won’t they give up the PCAP files?

Note that they are willing to give up the logs, but not the PCAP files. This is because PCAP files contain everything. In particular, someone looking at the PCAP file (which IPP, because of the timestamp and WORM drive, would not be able to redact) would be able to ascertain the IP addresses used by IPP’s servers. This is of course something IPP would very much like to be secret, as if it were public infringers could simply block it. (The PCAP file might also reveal which BitTorrent trackers IPP is monitoring, another thing that would blow their cover.) The files would also detail how IPP goes about showing infringement — the sort of thing found in Delvan Neville’s famous analysis outing John Steele as sharkmp4.

IPP has so far given few details about its INTERNATIONAL IPTRACKER client and how it determines infringement; those that it has given sound technically questionable and legally unsound. The PCAP files would confirm this.

Nicoletti seems to say that he is willing to provide one PCAP file per claimed infringement at trial. This is complete BS and should not be accepted. Nor should the thousands of PCAP entries corresponding to the defendant demanding discovery be accepted. The only useful — the only meaningful — thing in this case is the entire WORM drive with the qualified timestamp (yes, all 3 terabytes of it). Any excerpt of the PCAP record can and will be selectively taken, redacted, modified, etc. in order to facilitate IPP’s continued unwillingness to transparently describe their monitoring process. The log files are worse; they record exactly what IPP wants them to (they are written to a database by the INTERNATIONAL IPTRACKER software itself) and provide zero transparency.

The next few pages are full of whining about how it would be difficult to provide the PCAP files that I won’t reproduce here. I must note, however, one thing…

Further, IPP charges Plaintiff a fee to extract information from its servers. Therefore, in this one request alone, Plaintiff would have to spend several if not tens of thousands of dollars to produce this information.

lol!

Soapbox time: a message to Doe defenders

Nicoletti’s response contains several potential lessons for Doe defenders.

First, familiarity with the technical side is crucial. Don’t be like Paul Nicoletti, and don’t be fooled by Paul Nicoletti. At least know what a cryptographic hash is, how the BitTorrent protocol works, and so forth. Discovery isn’t of much use if you don’t understand what you’re getting. It is much more useful if you have advanced technical knowledge. A great deal of BitTorrent copyright trolling, X-Art’s included, is based on extremely shoddy and fundamentally unsound technicals, but to date no Doe defenders have been able to take plaintiffs to task for it — and now a body of BitTorrent-trolling caselaw has formed which is highly unfavorable to Does.

Second, aggressive discovery works. Even in cases like this when all it gets is a bunch of whining, it can still be useful.

A more serious closing thought

There is one small aside nestled inside the response that I would like to draw attention to:

The WORM tape drives used by IPP contain three terabytes of storage. [...] IPP goes through several of these tape drives each week.

That some company is keeping data — indefinitely — on Internet users’ activity to the tune of more than a terabyte a day is a sobering thought and should trouble everybody.

 


¹ Careful readers may have noted that there is one way in which this hashing method could work, which is if X-Art made the torrent themselves. I think it is far more likely that Nicoletti has no idea what he’s talking about.