Posts Tagged ‘Extortion’

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.

 

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.

I am the broom that must sweep the court
clean of such filth as thou art.

William Shakespeare

 

On Monday 10/7/2013, a very powerful motion to quash was filed by a Michigan attorney Eric Grimm in Malibu Media v. John Doe (MIWD 13-cv-00893), a case in the myriad of shakedown lawsuits filed by Keith Lipscomb via his local in Michigan Paul Nicoletti. This is not the first time Eric Grimm draws his sword to defend an extortion victim. Remember Prenda’s AF Holdings v. Ciccone (MIED 12-cv-14442), the only collusive lawsuit filed by Prenda in a federal court? As many other reputable Doe Defenders, Eric Grimm intervened in this mockery of justice.

This time Grimm calls out Lipscomb’s abuse of the ex parte procedure, reminding the judge that the adversarial process is at the very core of the US justice system. Filing a one-sided ex parte motion to discover the identity of a Doe, a motion that conceals a lot of objective facts unfavorable to the troll, is, to put it very mildly, improper:

[...] When a filing is made on an ex parte basis, however, there is no adversary to give the Court a more balanced understanding of all the facts. Accordingly, a different and more rigorous standard applies: “(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts that are known to the lawyer and that will enable the tribunal to make an informed decision, whether or not the facts are adverse.” MICH. R. PROF. CONDUCT 3.3(d) (emphasis added).

Grimm enlists what, in his opinion (and I 100% concur), are the truths that have been omitted by Lipscomb/Nicoletti. It does not make sense to quote all the 26 bullet points: each of them is noteworthy, and together they nicely summarize that trolls (Lipscomb’s in particular) have forgotten about their Oath of Admission to the Bar, and have been using courts as a robbery weapon for years.

Grimm gives a potent overview of the trolling phenomenon history, mentioning an instance when Lipscomb proceeded with his extortionate attempts against an innocent defendant. (Grimm does not point to the most egregious Lipscomb’s case, which I can’t help mentioning.)

Again, every paragraph is worth quoting, so I better refer you to the document: this is an epic motion.

 

Deterring infringement by suing only the wealthy

In one of the letters to the defense counsel, Paul Nicoletti responded to defense’s claim that Doe has limited assets:

Eric,

This isn’t possible. My client has developed a sophisticated analysis for these purposes which not only include a basic current asset search but also looks at the Defendant’s earning power over a 20 year period, the strength of our evidence when correlated to the subscriber household, whether the Defendant is sophisticated within the realm of IP (you’d be surprised how many IP lawyers end up as Defendants themselves), as well as a host of other factors.

We know that when trolls don’t poison the courts by frivolous filings, they are busy redefining the term “Chutzpah.”

So yes, a troll himself essentially admits that all the talk about protecting copyrights, deterring to-be infringers, etc. is hogwash. All that matters is money to enrich these leeches (and their “clients” who bathe in money). We knew it for a long time, but judges need to be reminded; the slow wheels of justice need to be lubricated.

What this means is that, for all practical purposes, the judge’s signature on the identity subpoena authorization order tends to amount effectively to a delegation of the judicial role to Paul Nicoletti and to Keith Lipscomb. They then arrogate to themselves the judge’s role of deciding how much each case is worth (reportedly, a sophisticated calculation involving the next 20 years’ earnings of any putative defendant, along with all the target’s collectable assets), and elect to decide in an typically overzealous way, what is “fair” to impose as a punishment on a cable subscriber who may or may not have deprived Malibu Media of as much as $25.00 or $50.00 in subscription fees. Are Lipscomb and Nicoletti objective judges of what consequences are fitting for such a horrendous loss (sarcasm intended) to a profitable company like Malibu? Obviously, their behavior suggests otherwise.

“We are saving marriages and making people happy”

Grimm did not forget about Lipscomb’s “client” — X-Art. The second part (Memorandum in Support: the same file, p. 12) questions the notion that hardcore pornography produced by X-Art is a “useful art,” and argumentatively questions the ostensive motives (“to deter to-be-infringers” and “to recover lost revenues”).

Malibu’s revenues are increasing, not declining, Malibu has disclosed. And settlements in copyright lawsuits, according to Malibu, represent substantially less than half of Malibu’s revenue. The X-Art website, says Malibu, is enormously profitable.

[...]

Especially if X-Art (Malibu) is highly profitable, and its profits from its website, not from lawsuits, continue to increase (as Malibu claims), despite being launched in the posttube era, perhaps Ms. Field really is less interested in averting the bankruptcy of X-Art (which, by every indication, does not appear imminent, to say the least), and more interested in funding what her Twitter feed suggests is a rather expensive lifestyle.

In a year-old interview (link NSFW) to Flashbot, XArt/Malibu Media co-owner Colette Field confirmed that they are not concerned with tube sites, which, according to the memorandum above, hurt the producers of pornography by orders of magnitude more than non-commercial Bittorent file-sharing:

Tube sites have brought us some traffic and I am ok with them as long as they remove our videos when we ask (which most of them usually do). I believe people who want real quality will still pay for it, regardless of the tube sites.

In a paroxysm of hypocrisy (or gullibility bordering cretinism), she also claimed (emphasis is mine):

I think X-Art has changed the way that people feel about watching erotica online. I think that we have made it ok for women, men and couples to enjoy beautiful sex scenes, get turned on, get off and have that be OK — I mean it is becoming acceptable in our society. We still have a long way to go, but I like to believe that we are saving marriages and making people happy.

Big thank to you, Colette, and your parasite attorneys, from thousands of families that you have blessed with happiness.

Summary judgment:
n. a court order ruling that no factual issues remain to be tried and therefore a cause of action or all causes of action in a complaint can be decided upon certain facts without trial [...]”

 

Robert James Jonker
Federal Judge
Robert James Jonker

In what I consider to be a significant development in the ongoing saga of the rise and fall of the porn copyright extortion business model, a defendant has made a motion for summary judgment. To the best of my knowledge, this is the first one and it bears deserving of a quick overview.

The lawsuit is pending in the United States District Court for the Western District of Michigan (1:12-cv-00617) and is entitled Malibu Media v. Roy. Significantly, it has been assigned to the Hon. Robert J. Jonker who last year eviscerated this and four other Malibu Media “swarm joinder” lawsuits, in part, because:

While the Rule 20(a)(2) permissive joinder rule is to be liberally construed, the Court does not believe it encompasses the “six degrees of separation” argument on which Plaintiff’s theory relies; namely, that each infringer is at a minimum connected to every other infringer in the swarm through any number of upload/download transactions occurring between any number of users over an indeterminate amount of time.

This determination severed the multiple “John Doe” defendants leaving the first John Doe in each lawsuit to bear the burden of Malibu Media’s settlement extraction process.

Despite Judge Jonker’s obvious displeasure at Malibu Media’s extortionate porn copyright infringement business model, its local counsel, Paul Nicoletti, decided to soldier on, which is where the story picks up. The remaining John Doe defendant was served with a summons and complaint in the Fall of 2012 and his/her attorney made a motion to dismiss the complaint on multiple grounds:

  • A. Plaintiff has not pled sufficient facts to allow the court to draw the reasonable inference that the defendant is liable for copyright infringement.
  • B. Plaintiff fails to allege facts that defendant committed a volitional act of copyright infringement.
  • C. Plaintiff’s supporting declaration evidence is inaccurate, misleading, and fails to link defendant to the alleged acts of infringement.
  • D. Counsel in identical cases have admitted that there exists a significant risk of misidentification.
  • E. Plaintiff’s allegations are likely unsupportable under Rule 11.

 

On 1/3/2013 this motion was denied with no reason given, with both parties being directed to proceed into the discovery stage of the litigation, in which both sides are to probe and examine the evidence of their adversary. On 01/25/2013 Malibu Media made its fairly standard motion to strike the Doe’s affirmative defenses, which Judge Jonker denied on Valentine’s Day 2013, in part, because:

Whether Defendant ultimately prevails on his affirmative defenses depends, at least in part, on the answer to currently unresolved fact issues. Discovery and dispositive motions are the best way to resolve those issues.

In other words, plough through discovery and then move for summary judgment as to liability or the viability of the affirmative defenses. However, Malibu Media’s business model is to terrorize Does into quick settlements in lawsuits, which rarely get beyond the pleadings stage. The next stage, which is discovery, does not fit into this business model because it is slow, time consuming and expensive. Accordingly, it would appear that Malibu Media’s attorney did not vigorously pursue discovery, which caused him on 8/30/2013 to make a motion to extend the discovery deadline, so he could examine the Doe’s computer hard drive to see if it had his remnants or entire files of Malibu Media’s hardcore pornographic videos. Judge Jonker denied this motion on 9/3/13:

The Court does not find good cause to extend the Case Management order deadlines. Discovery has been open for 8 months. There is no explanation of good cause for waiting until the day before close of discovery to address Defendant’s hard drive. The motion to extend Case Management Order deadlines (docket # 39) is DENIED.

With no evidence other than Malibu Media’s “expert,” who glanced an IP address downloading its porn¹, Defendant (via his attorney John T. Hermann) moves for summary judgment on liability:

In May of 2012, Plaintiff computer technicians identified seven IP address participating in an internet “swarm” that was distributing Plaintiff’s copyrighted works. Plaintiff relies on the declaration executed by Tobias Feiser (Docket Entry No. 4-2 ¶ 20) (hereinafter “the Feiser Declaration”.) The Feiser Declaration, however, provides no information or details whatsoever as to how Plaintiff intends to prove that Defendant as opposed to someone else having access to his internet service committed a volitional act of copyright infringement. Accordingly, Plaintiff’s claim of direct infringement is based on the assumption that Defendant is the actual person who utilized the internet account for the aforementioned acts. Similarly, the Feiser Declaration fails to provide any information demonstrating Mr. Roy’s knowledge or awareness of what was occurring over his internet account. Without any additional information Plaintiff is unable to show that he materially contributed to infringing conduct of another — a necessary requirement for contributory infringement.

This is of course the introductory summation. The motion is embedded below, which makes for some very interesting reading.

 

 


¹Assuming that the “expert’s” software is 100% reliable, which is questionable by itself, this IP address does not necessarily belongs to the infringer, but merely to a person who pays the bill.

I recently wrote about one of the most exciting events in the combat against copyright trolls: on 9/10/13 Lipscomb’s local counsel in Illinois and Wisconsin, Mary K. Shulz, was sanctioned by Judge Conley for Lipscomb’s arrogant douchebaggery (and her own lack of moral compass):

…in its current form, Exhibit C is struck from the complaint in each of the above-captioned cases and counsel for plaintiff Malibu Media, Inc. is sanctioned $200 in each of the above captioned cases for a total of $2,200, to be paid to the clerk of court.

For the reason yet unknown, Lipscomb divided his Midwestern turf into two parts. Prior to November 2012, the central US was terrorized by Paul Nicoletti alone. Currently, Illinois and Wisconsin are curated by Mary Katherine Schulz, and Nicoletti continues his racket in Michigan and Indiana.

Since then, Shultz helped Lipscomb in filing of 120 lawsuits, initially several-Doe ones (about a dozen Does each), but recently — only individual cases: 44 in ILND, 37 in ILCD, 28 in WIED, and 11 in WIWD. The latter group (those 11 cases) was the spot where the scythe hit a stone, and I believe that this is the beginning of Lipscom/Malibu shakedown campaign downfall.

It is not clear from the order wording if Schultz was sanctioned alone or Lipscomb was affected by the order too. Who exactly was slapped on the wrist is beyond the point anyway: the entire Malibu/Lipscomb shakedown machine was severely damaged. Regardless, Schulz has acquired some additional headaches.

Judge Frederick Kapala
US District Judge
Frederick Kapala

In one of the ILDN cases (Malibu Media LLC v. John Doe, 13-cv-50287), District Judge Frederick J. Kapala issued a short and terse sua sponte order only five days after the complaint was filed:

Plaintiff is ordered to show cause in writing within the next 21 days why it, and its attorney, should not be sanctioned in accordance with Rule 11 for the same reasons set out by Judge Conley in the Western District of Wisconsin in that court’s case number 13-cv-205-wmc, et al.

…which means that the infamy of Malibu Media/Shulz/Lipscomb travels from courthouse to courthouse much faster than it used to.

Right after that order, Shulz became super-busy filing motions to seal the frivolous Exchibit C in Illinois and Wisconsin¹ cases:

 

As you see, this motion vaguely promises more detailed explanations and reiterates the same “arguments,” to which Judge Conley reacted so furiously:

Malibu Media’s denials do not pass the smell test, and any denial of improper motive by its counsel does not pass the laugh test.

I see it as a very desperate move, and obviously Judge Kapala² sees it too.

It. Won’t. Fly.

Update

10/16/2013

On 10/15/2013 EFF (via attorneys Kurt Opsahl, Julie Samuels and Erin Russell) chimed in asking the Court to allow an amicus curiae brief. The proposed brief is attached:

 

Not much can be added… I agree with the following opinion on Twitter:

 


¹ I randomly checked the dockets: it seems that out of the three districts where Shulz trolls, she has been filing these motions only in ILND and WIED, but for some reason not in ILCD (I don’t mention WIWD, where Lipscomb is done, and ILSD is so far an uncharted territory for Malibu).

² Sadly, while some judges definitely talk to each other and their clerks are diligent, others seem to be busy and/or uninformed. At least in two cases in WIED (13-cv-00851 and 13-cv-00781), Magistrate Judges William E. Callahan and Nancy Joseph have granted motions to seal without much investigation.

You know it’s a sham, and a sham is very often but another name for a lie. Don’t let it go on record. The cursed thing may come staring us in the face long after this suit has been forgotten.

Abraham Lincoln chastising his law partner.

 

Since April of 2012 Malibu Media, LLC has filed over 1,000 lawsuits accusing thousands of individuals of infringing on the copyrights of its pornographic material and engaging in what has been judicially decried as “essentially an extortion scheme”. This massive copyright troll scheme is overseen by M. Keith Lipscomb of Miami who, like the notorious (now defunct) Prenda Law Firm, uses local attorneys to file lawsuits across the country. During this month two of these local attorneys have found themselves in judicial hot water. As SJD reported earlier, Mary Schultz was sanctioned jointly with Lipscomb for using “Exhibit C” to intimidate and harass John Doe defendants into early settlements in lawsuits that “give off an air of extortion.” This post will take a look at the judicial scrutiny currently being applied to local attorney Paul Nicoletti by Magistrate Judge John E. Martin of the United District Court for the Northern District of Indiana.

 

Nicoletti
Copyright troll Paul Nicoletti

The lawsuit (Malibu Media LLC v. Doe, INND 4:13-cv-00027) was filed on April 23, 2013 and as is always the case in these type of lawsuits, Nicoletti made a motion to obtain the personal identifying information of the John Doe defendant. On May 9, 2013 Judge Martin granted the motion. Perhaps mindful of the possibility of intimidation and harassment of the Doe defendant, the judge included an important Protective Order as he does in all Malibu Media lawsuits that are assigned to him:

Plaintiff, its counsel, and any other person or entity acting for or on its behalf shall hereafter refrain from any direct communication with Defendant without express leave of Court.

Nicoletti who is no stranger to ethical lapses and judicial sanctions broke this Protective Order and got caught, twice.

The first time occurred on July 29, 2013 when the judge noticed that a settlement had been extracted from the defendant, and that would be impossible to do without Nicoletti violating the Protective Order and communicating with him or her. Accordingly, the judge issued an Order to Show Cause for Nicoletti to explain himself.

Nicoletti explained that the verboten communication was “unintentional,” and it was the fault of the filters he had placed on his Gmail account. Additionally, he assured the judge that this “mistake” would not occur again with the judge’s other Protective Orders:

To prevent future mistakes, undersigned has created an excel spreadsheet which lists all active cases in both the Northern and Southern Districts of Indiana. The spreadsheet tracks those cases where, as here, judges have entered orders placing restrictions on Plaintiff’s and undersigned’s ability to communicate with defendants. Prior to communicating with pro se defendants in the future, undersigned will consult the spreadsheet to ensure that communication is not prohibited or otherwise restricted and undersigned will update the spreadsheet regularly. In this way, undersigned will make sure that a similar mistake is not repeated.

Furthermore, during the telephonic hearing on this matter, Nicoletti further assured the judge that this would never happen again in the future:

Q: Now that you’ve become aware of your error in this case and corrected your email screening mechanism, have you discovered any other communications with Doe defendants subject to the Protective Order?

A: I have not, your Honor.

Q: Has any other Doe defendant contacted you that was subject to my Protective Order?

A: No, absolutely not. This is the first and this is the only time where a settlement has been negotiated and the contact was actually made by the defendant. I’m not aware of any other instance where I’ve talked to or negotiated with or communicated with a defendant subject to your Protective Order.

Q: If any Doe defendant contacts you in the future, how will you handle it to ensure you remain in compliance with the Protective Order?

A: . . . I’ve got the physical printout, which is posted throughout the office, so before any contact is made in any case the chart is to be referenced and to be cross-checked to make sure that there is no protective order.

With those assurances and “safeguards” in place, the judge let Nicoletti off the hook and issued no sanctions.

In what can only either be jaw dropping incompetence of willful disregard of the Protective Orders, Nicoletti extracts another settlement from another defendant on September 4, 2013, the judge notices and he is not pleased. In a second Order to Show Cause the judge furiously observes (emphasis supplied):

On September 4, 2013, counsel filed Plaintiff’s Notice of Settlement and Voluntary Dismissal in cause number 3:13-CV-328-RLM-JEM, another case before this Court subject to an identical Protective Order. This cause number was listed on Plaintiff’s spreadsheet as being subject to a Protective Order. Plaintiff had not requested leave of Court to communicate with the defendant in that case, and no counsel had appeared on behalf of that defendant. Therefore, it appears to the Court that counsel’s representations at the show cause hearing that he had not “talked to or negotiated with or communicated with a defendant subject to [this Court’s] Protective Order” and that he would utilize his spreadsheet to prevent further prohibited communications after the hearing were false.

Next comes the scary stuff with the judge quoting both the Seventh Circuit Standards of Professional Conduct AND the Indiana Rules of Professional Conduct, which prohibit misrepresentations and false statements to a court, which I take to mean the judge may refer Nicoletti to the Indiana Bar Disciplinary Committee. Never mind the possible monetary sanctions; with Nicoletti’s history, the Indiana Bar could theoretically punch his meal ticket over this.

 

Perhaps Nicoletti has a perfectly reasonable explanation for all this douchebaggery and, then again, maybe not [09/16/2013 Update: the reason appears to be legitimate, see the update below]. We will find out on September 29, 2013 — when he has been ordered to come up with his excuse or explanation. Hope it passes both the smell test and the laugh test. With this development IMO Lipscomb’s copyright trolling enterprise has boldly entered the Prenda Law universe.

 

 

Update (and retraction)

06/16/2013

Well it turns out Nicoletti DOES have a legitimate reason as he did not violate the Protective Order. In his Response to the Order to Show Cause Nicoletti states:

Undersigned did not misrepresent facts regarding his compliance with this Court’s Protective Orders at the August 29, 2013, show cause hearing. Plaintiff’s Notice of Settlement and Voluntary Dismissal filed in case number 3:13-cv-328-RLM-JEM was the result of negotiations which occurred entirely through the Mudd Law Offices and attorney Charles Mudd of 3114 W. Irving Park Rd., Suite 1W, Chicago, IL 60618 (Phone: 773-588-5410) — although counsel for defendant did not make a formal appearance in that case. At no point did undersigned have any contact with the defendant whatsoever.

Still, the “GMail” excuse in the first case does not pass a stink test. Not at all. And that instance of scumbaggery alone warrants publicity.


Federal Judge
William M. Conley

A huge win against the copyright abusers took place today in the WIED court. District Judge William M. Conley issued his Opinion and Order regarding one of many troll Lipscomb‘s sleazy practices:

On May 28, 2013, Magistrate Judge Crocker ordered plaintiff Malibu Media to show cause why this court should not issue Rule 11(b) sanctions for its regular practice of attaching an apparently unrelated and embarrassing “Exhibit C” to the complaints in each of the above-captioned copyright infringement cases.

As a result,

While plaintiff offers at least colorable justifications for attaching these lists, the court is unconvinced, concluding that the intent was to harass and intimidate defendants into early settlements by use of the salacious nature of others’ materials, rather than the merit of its own copyright claims. Accordingly, the court will sanction plaintiff’s counsel $200 per case.

 

While it may seem like $200 per case is a penny for the Lipscomb/Field extortion enterprise, don’t forget that now each of Malibu’s cases with the infamous Exhibit “C” is likely to be affected. And there is a legion of such cases across the country.

Big thanks to Mitch Stoltz and Erin Russell for filing the amicus curiae brief on behalf of the EFF, which undoubtedly had an impact on the judge’s decision.

The Order is going to be quoted ad nauseum in future Doe motions:

While the court agrees with Malibu Media that there is only circumstantial evidence of ill intent, Malibu Media’s denials do not pass the smell test, and any denial of improper motive by its counsel does not pass the laugh test.

A well deserved reversal of fortune after the Bellwether fiasco.

Media Coverage
Daniel Ruggiero, Prenda’s local in the Eastern states, filed dozens of cases on behalf of Prenda’s fake plaintiffs. Today he submitted a curious motion to withdraw (without substitution) as Plaintiff’s counsel in AF Holdings, LLC v. Chowdhury (MAD 12-cv-12105), one of the two cases Prenda couldn’t easily dismiss because the counterclaims are pending (hat tip to Booth Sweet). In this motion Ruggiero plays a gullible attorney, who did not know that “Prenda” is a synonym of “Fraud” and suddenly wakes up:

The undersigned had absolutely no prior knowledge of any of the findings of Judge Wright and the additional findings of Judge Chen.

Once I became aware of the “on goings” of AF Holdings and the others mentioned in his decision, I reached out to speak with someone about it. I received a phone call from someone who claimed to be Mark Lutz. It is my understanding that Mr. Lutz is the owner of Plaintiff, but to be honest, I have no idea what to believe.

While I share Daniel Ruggiero’s sentiments regarding Mark Lutz, I don’t believe in Daniel’s sincerity: either he is a cynical hypocrite or he has an IQ of… to not figure out Prenda’s “on goings” much earlier. Well, neither conclusion is flattering.

 

There are rumors that Ruggiero has 99 problems with Massachusetts’ Bar, and Prenda ain’t one. Thus, I wouldn’t worry too much: justice will be served one way or another. In addition, by throwing his former bosses under the bus, Ruggiero has finally done something useful that will heal one or two bruises on his abused Karma.

In other news

Prenda’s/Anti Piracy Law Group‘s site wefightpiracy.com / wefightpiracy.org now redirects to Google. Good riddance. Fightcopyrighttrolls.com and dietrolldie.com are alive and well.

Update

8/21/2013
Judge Joseph L. Tauro Endorsed ORDER entered — Allowed 22 Motion to Withdraw as Attorney. Attorney Daniel G. Ruggiero terminated. 

Ruggiero has dodged the bullet.

In a recent appeal to the U.S. Court of Appeals for the Ninth Circuit, Paul Duffy wrote:

Prenda Law is currently winding down its operations and is in the process of dismissing its remaining cases pursuant to the instructions of its clients [sic]. In some instances, the requests for dismissals are being opposed, resulting in delays and ongoing law and motion proceedings that have precluded Prenda Law from completely ceasing its operations.

Fortunately, everyone, including judges (well, except some either lazy or gullible ones), takes these words with a grain pound of salt. Whom do you want to deceive, Paul/John/Paul? Bullshitting a Court of Appeals is a very good idea. Go on, we are ready for an illustrious show.

So, while a San Diego law firm Klinedist has been doing its best to avoid unavoidable — a total destruction of SS Prenda — in a joke of a court that is located in St. Clair County IL, a brand new shake-down campaign is underway. Unbelievable chutzpah. In this judicial stinking hole, where even the chief judge is seemingly in bed with Prenda (Judge Baricevic signed a carte blanche “agreed order,” the document that no self-respecting judge would even consider signing), a new lawsuit/petition was filed on April 15: Peg Leg Productions v. Charter Communications. Who are the signers? Paul Duffy and Kevin Hoerner. Of course.

 

I don’t want even try to go into this garbage petition’s details, it is too obvious what’s going on here.

So, what the hell is “Peg Leg Productions”? A painfully familiar name offends our sight once again:

 

Let’s reiterate the dates (I’ll omit many secondary events: refer to a titanic job by John Henry, who organized all the events in a nice timeline):

  • April 2: Prenda principals plead the Fifth declining to answer questions about the bogus corporations and their roles in those corporations.
  • April 15: A new lawsuit/petition Peg Leg Productions v. Charter was conceived in a scandal-rigged St. Clair County court.
  • May 6: Fleet Admiral Judge Otis Wright slammed his massive hammer on the Prenda player’s heads.
  • May 28: An entity that managed to file a lawsuit 1.5 months earlier was finally created: Lutz & [unborn] Sons as a CEO.
  • June 14: In an “emergency” motion, ostensibly Paul Duffy stated that “Prenda is winding down its operations.” And please, John Steele, don’t insult judges’ intelligence once again, bullshitting that Lutz’s funny businesses are independent from Prenda; that you, Hansmeier, Prenda, and Lutz have nothing to do with each other.

 

I must give a credit to some sense of humor our crooks have shown: referring to a stereotypical pirate attribute is funny, and at the same time is an unambiguous hint to who is the actual pirate.

 

Update

6/17/2013

Today Morgan Pietz filed his response to Prenda’s “emergency” appeal that incorporates the same findings that are the subject of this post. I’m happy to note that Morgan came to the same conclusions: he illustrated that despite Duffy’s claims (made under oath), the stubborn facts do not corroborate those claims.