Posts Tagged ‘Malibu Media’

This development in one of the porn trolling cases — Malibu Media v Gerald Shekoski (MIED 13-cv-12217) — is not too dramatic, yet interesting.

Defendant’s motion for protective order regarding his hard drive

This motion was filed on 7/2/14 by attorneys Derek W. Wilczynski and Lincoln G. Herweyer on behalf of the defendant who claims absolute innocence. While not opposing to his hard drive examination in principle, the defendant was justifiably concerned about possible fishing expedition to his sensitive data. The plaintiff (Keith Lipscomb / Paul Nicoletti) insists that the drive examination should be performed by its expert Patrick Paige, whose reputation was tainted by his sloppy (and maybe even deliberately biased) declaration in Malibu Media v. Kelley Tashiro (INSD 1:13-cv-00205). In addition, given the overall infamy of the shakedown artists, the defendant reasonably doesn’t trust that the forensic analysis will be performed honestly and that unrelated data found on the drive won’t be misused to press the defendant to settle:

From Defendant’s perspective, however, the procedure contemplated by Plaintiff is needlessly invasive and lacks adequate safeguards, among other problems. In truth, Defendant welcomes another opportunity to demonstrate that he did not engage in peer-to-peer file sharing of Plaintiff’s works, and fully expects that a forensic examination of his computer’s hard drive will bear witness to that fact.

[...]

Moreover, Defendant understandably distrusts the particular persons who want to subject his confidential information to such exacting scrutiny. Defendant does not have the resources to monitor Malibu or IPP (the German IT firm on whose work Plaintiff’s case is based) and hold them accountable should they violate the protective order contemplated by Plaintiff. Instead, Defendant would have to essentially trust them. Yet, pornographers with an industry-sized litigation practice of coercing settlements from blameless individuals do not instill the confidence necessary to such trust. Nor does a foreign IT company that may be a shell for a previously discredited firm instill such trust. While Plaintiff may be heard to shout its own bona fides, one must remember that Defendant knows that he did not infringe Plaintiff’s copyrights and, therefore, he knows that Plaintiff is the kind to sue innocent people and attempt (from his perspective) to extort money from them.

So, the defendant wants

[...] the moral equivalent of an in camera inspection of his computer’s hard drive, by using a licensed but neutral expert in computer forensics (paid for by Plaintiff) who can provide the information to both parties that is relevant to Plaintiff’s claims, but who will not otherwise divulge the contents of Defendant’s computer to Plaintiff or anyone else.

…and he wants a local expert, arguing that

[...] in Michigan those who engage in computer forensic investigations for a fee must be licensed, and doing so without a license is a felony punishable by up to four years in prison.

 

Order on this motion

US Federal Judge
Victoria A. Roberts

Today Judge Victoria A. Roberts ruled on this motion, and while she ordered to hand out the mirror of the defendant’s hard drive to Malibu/Paige, she agreed with the other safeguards that the defendant asked for (emphasis is mine):

Counsel for Malibu Media is to supply defense counsel with copies of protective orders entered in similar cases pending in this district, to be used as models in fashioning this protective order. As basic parameters, Defendant is to provide a mirror image of the hard drive at issue to Malibu Media, at Malibu’s expense, as soon as the terms of a protective order have been agreed upon. The protective order will specify the material that Malibu’s forensic expert is looking for; anything else on the hard drive is off limits for discovery purposes.

[...]

If the forensic examination does not reveal evidence of the copyright infringement alleged in the complaint, and if there is no evidence that infringing files have been deleted, Malibu Media will dismiss its claims against the Defendant.

 

Like the defendant, I do not trust anyone associated with Lipscomb’s division of Guardaley. Therefore I’m not confident that the crooks won’t find a way to maintain the lawsuit, ramping up the legal costs and increasing the pressure to settle, even if no evidence of infringement is found.

Nonetheless, this is a welcome development and good news amid the ongoing legal epidemic of copyright trolling. At least this defendant will avoid embarrassing questions about his purported porn habits, and his Internet bandwidth usage won’t be a subject to Orwellian insinuations.

Many things happened recently on the Bittorent litigation front. While the majority of the events don’t warrant dedicated articles, these events are all important.

Updates to previous posts
Copyright troll Malibu Media targets a business, but fails to timely serve it
M. Keith Lipscomb

Alas, in this case, where Malibu targeted a business and played games with service, a motion to cut and run without prejudice was granted by Judge Michael Mason on 6/30/2014 — contrary to the defendant’s earlier request for dismissal with prejudice, which would allow to recover attorney fees. Paul Nicoletti’s 6/27/2014 response to the defendant’s motion is an epitome of the cynical exploitation of the judicial system’s blemishes by the troll. Unless the system is modified to lower the bar of accountability for legal yet disgusting practice of cutting-and-running, while leaving innocents with huge legal bills, the abuse will continue to flourish.

If this middle-finger-behind-the-back thuggery doesn’t make your blood boil (or at least prompt an acute desire to take a shower), I can only envy the thickness of your skin (emphasis is mine):

[...] a voluntary dismissal with prejudice in this case would be grossly unfair. Plaintiff never served the Defendant, which is a small closely held business. The infringer is an employee or owner of Defendant. If the case was dismissed with prejudice, it would arguably make Defendant the prevailing party and trigger a motion for attorneys’ fees. Awarding fees to Defendant would be unfair because it is likely than an owner or employee of Defendant committed the infringement. Further, such award would deter these types of suits and reasonable investigations, which would be contrary to the express purpose of the Copyright Act. And, Defendant has not prevailed on any issue in this litigation, no discovery has been taken, and the underlying copyright litigation is not being decided on the merits. Finally, Plaintiff intentionally did not expose itself to a motion for fees as evidenced by Plaintiff’s decision not to serve Defendant. Instead, Plaintiff tried to identify the culpable employee within the Rule 4(m) deadline. It could not do so but Plaintiff’s investigation continues.

Elf-Man v. Lamberson: defendant agrees to let plaintiff go… for $100,000

Without waiting for Elf-Man’s reply brief due next Friday, Judge Thomas Rice ruled on the dismissal on 7/10/2014. The judge expressly declined to award the costs and fees as a condition of dismissal, citing authority that a sanction cannot be a condition of a dismissal. The good sign is that the judge explicitly invited defense to file a motion for fees and costs before August 24, so I expect it won’t be denied, yet can’t predict what the exact amount Judge Rice will find reasonable. Also note that Lamberson’s counterclaims are dismissed without prejudice.

[7/15/204 Update] DieTrollDie’s analysis.

Copyright trolls are back in Virginia. Jon Hoppe has a reading comprehension problem

In 17 out of 19 Malibu Media cases filed in Virginia on 6/11/2014, Jonathan Hoppe’s pro hac vice application was granted, which is a clear violation of the Virginia State Bar Rule 1A:4(5), allowing an out-of-state attorney to appear in no more than 12 cases simultaneously. I’m sure that the first Doe who files an answer/motion to dismiss will convey this evident violation to the judges.

Mark your calendars: Malibu Media is set to defend its questionable conduct on July 30

As predicted, Lipscomb applied for pro hac vice admission in Maryland — in all the three cases where Morgan Pietz’ bunker buster motion will be heard on 7/30/2014 — an expected trollmageddon before the panel of three judges.

Déjà vu all over again: Pure Bill of Discovery is still being abused in Florida

The zombie of Florida’s antiquated Pure Bill of Discovery is back in its grave (for good?): attorney Cynthia Conlin brought good news on 7/10/2014: the only known Pure Bill Of Discovery case (Canal Films v. Bright House Networks) aimed at unmasking purported file-sharers without due process was voluntarily dismissed after she filed a motion to vacate judgment, and the ISPs moved and applied further pressure.

In other news
  • Malibu Media, the most active Guardaley’s Erpressungdivision, filed 60 new cases over the last week:

     

  • An interesting bit of information: seemingly, Charter Communications is fed up with trolls. According to some motions for extension of time to shake down defendants filed in Michigan by Paul Nicoletti on Friday,

    [...] Charter has objected to Plaintiff’s subpoena. Plaintiff is in the process of preparing a Motion to Compel Charter’s responses which will be filed in the district in which Charter is located, the Eastern District of Missouri.

  • In a closely-watched case Malibu Media v. John Doe (ILND 13-cv-03648), where the defendants’ 2257 affirmative defense survived the motion to strike (hence opened the avenue of discovery that was so far off-limits), Malibu and its lawyers show signs of fear, trying to restrict expectedly devastating discovery results to this case only and to ban Morgan Pietz from sharing the obtained evidence with other Does he represents in numerous Malibu cases.
  • A new cynical statement was made by Nicoletti in Malibu Media v. Jesse Raleigh (MIWD 13-cv-00360):

    Defendant should bear the cost of producing forensically sound images of his hard drives because the hard drives are accessible and the imaging process does not impose an undue burden or expense.

    As Raul nicely noted,

 

Thanks to Raul and Calvin Li for mundane yet critical job of finding and recapping the most interesting documents.

Update

7/14/2014

Update to updates? What am I doing??? Just thought you would enjoy the following document:

 

Can granting a motion for default judgment be a benchslap at the same time? Apparently.

Seeing people punishing themselves by not replying to trolls’ accusations makes me sad, very sad. Fighting against a collection agency or US Marshals is orders of magnitude more difficult and painful than fighting against porn copyright trolls. Every month we witness more than one default judgment, and the awarded amounts are Kafkaesque: a yearly income worth of fines for allegedly sharing a bunch of cheap porno flicks is an insult to the US Constitution (I’m talking about the Eight Amendment).


US Federal Judge
Robert H. Cleland

Yet this time, reading Judge Robert H. Cleland’s order issued back in October 2013 (Malibu Media LLC v. Lara Dupius, MIED 13-cv-11435), I couldn’t suppress a laugh. It was clear that the judge, while being bound by law, so he couldn’t deny the motion (which is 100% understandable), expressed certain disgust towards Malibu’s “counsel” Paul J. Nicoletti.

As a result, the amount defendant ordered to pay is 3 times less than the trolls demanded, an absolute statutory minimum: $750 per “work” times 20¹ = $15,000 total.

And it’s getting better as we keep reading:

[..] Malibu is awarded attorney’s fees and costs in the amount of $1,679. The court finds Malibu’s request for $2,550 (at a rate of $300 an hour for eight and a half hours) in attorney’s fees to be unreasonable—Malibu has filed hundreds of similar actions across the country and its attorney’s assertion that he spent an hour drafting what appears to be a boilerplate complaint, and an hour and twenty minutes drafting a two-page motion for default judgment strains the court’s credulity. The court further notes that Malibu’s requested attorney’s fees continually reference multiple defendants—a curious request given that there has only ever been one defendant named in this case. Accordingly, the court awards Malibu attorney’s fees for five hours at a rate of $250 an hour. See State Bar of Michigan 2010 Economics of Law Practice Summary Report, at 9 (stating that the median attorney billing rate for an attorney whose office is in Oakland County, south of M-59, is $250 an hour). The court awards Malibu its requested filing fee of $350, but reduces Malibu’s requested $95 service-of-process fee to $79 given that Malibu’s requested costs are contradicted by the record.

So the moral of this story is simple: if your job or relationship doesn’t depend on the fear that your name is dragged through the mud by the “barely legal” pornographers and scumbag lawyers, do not ignore summons, hire an experienced attorney and fight back. There are judges out there who are ripe for stopping the German plague.

Update

US Federal Judge
David M. Lawson

Right after this post was published, Calvin Li and Raul noticed a very similar order (based on the one posted above) was issued in the same district, but by a different judge — David M. Lawson — yesterday (Malibu Media v. Kurt Shelling, MIED 13-cv-11436):

The plaintiff has not made a showing that justifies statutory damages in excess of the minimum amount. The amended complaint alleges merely that the acts of infringement were “committed ‘willfully,’” Am. Compl. ¶ 32, without any factual allegations to back up that conclusion. The plaintiff is entitled to $6,000 in statutory damages for the eight acts of infringement set out in the amended complaint, Exhibit B.

and

The plaintiff’s request for attorney’s fees is problematic.

[...]

The practice here is the essence of form pleading. For instance, on the day this case was filed — March 29, 2013 — seventeen other cases were filed in this district by Mr. Nicoletti with an identical complaint. Each of the complaints is seven pages long with thirty-three paragraphs of exactly identical allegations, and the amount of statutory damages and the terms of the permanent injunction requested is the same. The only difference between the complaints is the defendant’s assigned IP address, which is later used to identify the named defendant.

 


¹Lipscomb found this “legal bonanza” when he stopped filing mass lawsuits: with Malibu’s short films shared in bundles, he can claim multiple infringements from a single alleged file-sharer. This is a “feature” of the rigid, outdated copyright law: for the purpose of the statutory damages, the blindfolded Themis equally treats a multi-million cinematic masterpiece and a cheap, plotless 10-minute flick of amateur teenagers having sex. Only the most despicable cynics exploit this vulnerability to rob the population out of hard-earned money.

Elf-Man, Elf-Man, hold it a little while,
I think I see Chris Lynch coming, riding many a mile.

Led Zeppelin: Gallows Pole, paraphrased

 

A bit less than a month ago I covered a German-linked copyright trolls’ panic — an attempt to cut and run after the defense presented a damning evidence of champerty and fraud in Elf Man v. Lamberson (WAED 13-cv-00395). As predicted, the defendant wasn’t amused by the prospect of letting the plaintiff dismiss the case and call it quits without certain conditions (namely, paying $100,000 for the trouble):

[...] Mr. Lamberson requests the court condition the dismissal on payment in advance of $100,000 pul $154.50 in allowable costs for the deposition costs charged for the Fed. R. Civ. P. 30(b)(6) deposition of Elf-Man, LLC which was noted and held, but which neither Elf-Man, LLC, nor its counsel attended.

On 7/3/2014 the defendant’s attorney Chris Lynch filed 5 (!) documents:

 

Embrace for a thorough and intriguing read. Some interesting points:

  • The defendant asserts that the copyright certificate is incomplete: a critical second page with signatures is missing (probably stolen by the ghost of Alan Cooper). Notwithstanding, the plaintiff continues to cherish its entitlement to statutory damages.
  • Guardaley and its shells (APMC, IPP International, Crystal Bay Corporation… you name it) are undeniably the real party of interest, yet this fact was not disclosed in this case as required by law.
  • No admissible evidence of the defendant’s wrongdoing exists: despite the statement by German “experts,” no one actually “observed defendant infringing” at all. All these wannabe investigators have is a half-second piece of the movie allegedly shared by the defendant’s IP address.
  • While the estranged Elf-Man’s attorney Maureen VanderMay, despite the overwhelming evidence of the contrary, still claims that she sent documents to the defense before the deadline, Chris Lynch discovered that she blamed USPS in the past. Facepalm.
  • The transcript of the APMC Prezi presentation is filed as an exhibit, the most cynical parts are quoted. For example,

    “APMC stays in the background where they are invisible, but we are the center (i.e. ‘we make things happen.’)”

    “We bring the clients to the law firms. We manage their legal strategy.”

 

There is much more in these documents, including well-described links between the parts of this German-centered racketeering organization (yes, including Lipscomb/Malibu Media/X-Art):

3. Anti-Piracy Management Company, LLC (“AMPC”) is incorporated in California, but using the address of 400 Capitol Mall, 11th Floor, Sacramento, CA 98514. That address belongs to the Weintraub Genshlea Chediak law firm. I called the Weintraub law firm to inquire about APMC and the Sacramento address. I was informed that the Weintraub law firm occupies the entire 11th floor of that building. The law firm receptionist had no contact information or forwarding information for APMC.

4. The Weintraub law firm has been a plaintiff’s attorney in other BitTorrent cases, including Camelot Distribution Group v. Does 1-5856 (not a typo), in the Central District of California, Case No. 11-cv-01949. That matter used Tobias Fieser as its witness wherein Mr. Fieser declared, ECF No. 22-1, that he was the “Technical Administrator of IPP International UG.”

5. Mr. Fieser also testified in the Eastern District of Pennsylvania in 2013 in Case No. 2:12-cv-02078-MMB, ECF No. 205, where he testified beginning at page 91 about his responsibilities at IPP in Germany. At page 97, Mr. Fieser was asked:

Q: Did anyone else at IPP, Limited verify that the movies were copies of Malibu Media’s works prior to filing the lawsuits?

A: Yes, Dan Macek also verified the movies.

Remember that Daniel Macek is explicitly mentioned in the “Devil’s cookbook” (p. 36).

I’m sure that these findings will be discussed in the oncoming hearing in Maryland. The storm is coming.

Forget the “contingency fee agreement,” the fraud is deeper than it appears

Three things cannot be long hidden: the sun, the moon, and the truth.

Buddha

 

The most important piece of the new information in Chris Lynch’s filings is sealed and heavily redacted (Exhibit B), yet the following description is more than enough (emphasis is mine):

The explanation did include an April, 2012, agreement between APMC and Vision Films that Ms. VanderMay said was part of the explanation. That agreement is filed under seal and is designated as Exhibit B to Mr. Lynch’s Declaration. Lynch Decl. at ¶ 8. Page 7 of that agreement includes redacted portions, but does otherwise indicate that any recoveries from APMC’s enforcement campaign would be allocated first to APMC’s costs, and then “the remaining monies shall be distributed as follows: (a) The appointed Attorney’s and litigation [REDACTED IN ORIGINAL], (b) The appointed forensic IT expert costs [REDACTED IN ORIGINAL], (c) The RIGHTS OWNER shall receive [REDACTED IN ORIGINAL].” In other words, it appears that APMC as the investigator and financier of the litigation has a direct and contingent stake in it.

So this is the moment of truth: this is the answer to the question why Malibu Media and other Guardaley-affiliated trolls have been stonewalling discovery aimed at untangling the web of relationships between the Germans, their lawyers and plaintiffs. When the “oral contingency fee agreement” was inadvertently mentioned in an answer to interrogatories, it was bad enough, but the reality is even more shocking: the German “investigators” are not being paid on contingency; it is them who pay lawyers and plaintiffs a fraction of the settlement proceeds. Just think about it: all this copyright law abuse, fraud, misery, ruined families and careers, bankruptcies — this grim theater is run by a foreign racket with the help from greedy puppets — American lawyers.

I used the word “fraud” deliberately. In thousands of frivolous cases that have been plaguing this country for years, not a single time a real party of interest — Guardaley — was disclosed. This gross deception won’t stay hidden from the US judges for long.

 

Related: Redefinition of “Chutzpah”: the troll moves for default judgments
David A. Lowe
David A. Lowe

Make sure to read the latest DieTrollDie’s post on this topic: DTD analyses plaintiff’s questionable motion for default judgments against seven defendants in the Lamberson’s parent case (Elf-Man LLC v. Does, WAED 13-cv-00115), including the unbelievable two separate claims against a single married couple. Well, if Elf-Man’s new attorney Mr. David A. Lowe appeared on the case in this astonishingly douchy and sloppy way while even Mrs. VasderMay bailed out from the Bittorent cases citing ethical concerns, it doesn’t require a Ph.D. to deduce Mr. Lowe’s moral and professional qualities.


US Federal Judge
Thomas M. Rose

A recent infestation of the Ohio state by the copyright troll Guardaley/Malibu Media/Lipscomb (via a local hungry attorney Yousef Faroniya) did not amuse certain judges in the Southern District. On Thursday, Judge Thomas M. Rose vacated his previous orders granting ex parte discovery in four cases (Malibu Media LLC v. Does, OHSD 14-cv-00150, 14-cv-00151, 14-cv-00183, 14-cv-00184), giving Malibu 30 days to fix the problems the judge saw (and smelled). Such things don’t happen every day; hence I wanted to write a short post (thanks to Raul for the heads up).

Judge Rose outlined two issues:

First, Malibu has not presented prima facie evidence of copyright ownership of the specific copyrights at issue. Malibu pleads that it owns the copyrights at issue in its unverified Complaint but there is no evidence from which a court could conclude that Malibu has made a prima facie showing of ownership (the Declaration of Colette Fields attached to the Complaint is invalid because it is not dated and, if it were valid, does not indicate ownership of the specific copyrights at issue).

Second, Malibu’s Complaint alleges that it has traced the allegedly infringing IP address to a physical address that is located within this Court’s venue. The Complaint later alleges that Malibu knows only the IP address and seeks to learn, among other things, the associated physical address. The Court is unclear as to whether or not Malibu knows the physical address of the alleged infringer. If it does, why does it seek to again learn it? If it does not, how was venue determined?

The latter concern was recently raised by Judge Ungaro in Florida (Malibu Media v. Doe, 14-cv-60259): she issued an order to show cause that asked exactly the same question: why Libscomb is so sure that the venue is proper. Lipscomb submitted a lengthy response — all in vain: the judge seemingly didn’t want to navigate through the weasel’s burrows and, frowning, simply dismissed the case for failure to timely serve the defendant.

 

I hope that the recent mudslide of Malibu Media cases descended on the Ohio state will prompt somewhat heightened scrutiny, and the other judges stop rubberstamping ex parte intrusions to US citizens’ privacy.

Sometimes you need to be a bully to beat a bully.

James McGibney

 

Reading Malibu Media’s motion to compel the defendant to answer interrogatory questions (Malibu Media v. Jason Pontello, MIED 13-cv-12197, troll Paul Nicoletti), I noticed a couple of obnoxious questions that the defendant understandably refused to answer:

Plaintiff’s Interrogatory No. 22: Have you or anyone who has had access to a wireless router(s) or modem(s) in your home visited an adult website within the last two years? If so, identify the websites and state how often those websites were visited.

Defendant’s Response: Defendant objects to the nature of this interrogatory in that it is not related to the instant action, is overly broad, vague, unduly burdensome, and part of a calculated strategy intended to threaten Defendant with an intrusive invasion of unrelated personal information as retaliation for his failure to submit to Plaintiff’s extortion tactics. The nature of the request is deliberately calculated to elicit information by which Plaintiff can then use to embarrass him as a viewer of pornography in order to facilitate a coercive and/or extortionate settlement or demand. Accordingly, no response is warranted.

Plaintiff’s Interrogatory No. 23: Have you ever watched x-rated, adult or pornographic movies or live feeds (collectively, “adult content”)? If so, when was the last time you watched adult content, how often do you watch adult content, which studios do you prefer, and what type of movies do you prefer?

Defendant’s Response: [same as 22]

Plaintiff’s Interrogatory No. 24: Have you ever subscribed to an internet company distributing adult content? If so, identify the company and state the period of time that you were a subscriber.

Defendant’s Response: [same as 22]

The defendant (represented by attorney John Hermann) is right, and I hope that the judge will deny this motion. If the defendant is compelled to answer these questions, I have no doubt that Lipscomb/Nicoletti will not hesitate to further invade their victims’ privacy by asking such questions as “How often do you masturbate? If so, what are your fantasies: do they involve very young girls? ” Or “Are you a gay? If so, explicitly specify if you are an open or a closeted gay.”

Plaintiff’s requests improperly seek information regarding Defendant’s internet setup, computer setup, and internet habits.

Plaintiff’s inquiry into Defendant’s personal computer usage and internet setup does not relate to any relevant issue or fact. Such requests have no bearing on Plaintiff’s allegations. Inquiries into patently irrelevant facts demonstrate Plaintiff’s counsel’s flagrant attempt to harass and annoy Defendant.

Stop, stop, stop. Did I write these two paragraphs? Of course not! I simply lifted these passages from the plaintiff’s motion for protective order limiting discovery (Malibu Media v. Jeremiah Benson, COD 13-cv-02394, troll Jason Kotzker), which sought to shield X-Art’s owners Collette and Brigham from the defendant’s “frivolous” questions compiled by attorney David Kerr. I only replaced “Plaintiff” by “Defendant” and vice versa, and made very minor alterations. Here is the original:

 

While I admit that the set of requests for production of documents / interrogatories / requests for admission (embedded below) is very aggressive (which may be counter-productive), the majority of the questions is up to the point, and if answered truthfully by the plaintiff, would bring its dirty copyright shakedown business to the brink of collapse (which will happen anyway rather soon).

It is both ironic and boring to observe a typical reaction of a bully being bullied: a fake “toughie” cries “Mommy!” when being seriously confronted.

It is no surprise that in order to avoid answering the questions on paper and during an inevitable deposition of our porno couple, Malibu agreed to settle this case pending a polygraph test (which is a travesty in my opinion; however, if for the sake of argument we assume that such tests are not a total hogwash, I’d like to see Brigham and Colette undergo the same procedure: they are the paragons of truthfulness, hence they have nothing to fear, right?).

In any case, the list of questions remains in the annals as a nice template for pro se defendants in Malibu cases. My advice though is not to fight Malibu on your own, especially if you are innocent: the tables are turning quickly, and you have a chance to win, including monetarily. But for this you need an experienced attorney.

 

Media coverage
It is always sad to observe default judgments against copyright trolls’ targets. There were troublingly many such orders recently. While some are the result of a faulty or outright fraudulent service, the majority of the defaults are due to defendants’ ostrich philosophy. Alas, avoiding trolls’ harassment by burying one’s head in the sand can result in much more severe harassment by professional collection agencies. In addition, these judgments embolden trolls, i.e. create an illusion that their assault on people is legitimate. Also, these “wins,” even uncollectable, have historically been serving as instruments of coercion.

Chris Fiore
Porn troll Chris Fiore,
a male

One of such default judgments was ordered by a Pennsylvania judge J. Curtis Joyner in Malibu Media v. Brian Flanagan (PAED 13-cv-05890, troll Christopher Fiore) on 7/1/2014. The memorandum is a long and sad read, but for the purpose of this post I want to concentrate on a single disturbing detail (emphasis is mine):

In response to a third party subpoena, the internet service provider disclosed the Defendant’s wife as the owner ofthe IP address that was allegedly downloading Plaintiff’s copyrighted movies. (Amended Complaint at ¶ 26 (Doc. No. 11)).However, Plaintiff brought suit against the Defendant, not his wife, alleging that the Defendant’s wife likely did not engage in the infringing downloads. (Id. at ¶ 28). Plaintiff suspected that since Defendant resides with his wife and had the means to use the BitTorrent in the house where the infringement emanated, he was “most likely” the person to engage in the infringement. (Id.at ¶¶ 26-27, 40). Additionally, Plaintiff asserts that a majority of its’ [sic] subscribers are males, and the Defendant’s online activities, hobbies, and interest implicate he was the infringer, and not his wife (Id. at ¶¶ 28-40).

Implying that being a male somehow proves the guilt is bad enough, but there is more. Doesn’t Colette Field, X-Art/Malibu Media co-owner, state in her endless declarations that

6. Brigham and I both felt that there was a lack of adult content that was beautiful and acceptable for women and couples. We wanted to create this type of content to satisfy what we hoped was an unfulfilled demand.

7. Our goal was to create erotica that is artistic and beautiful.

8. We chose the name ‘X-Art’ to reflect our artistic aspirations, and began investing all of our available money and resources into the production of content — particularly erotic movies with high production value and a cinematic quality.

I’m sure that neither Lipscomb nor Colette is capable of lying. Therefore, I’m confused.

 

First TorrentFreak, then ArsTechnica noticed very troublesome developments¹: Malibu Media, the most damaging copyright troll today, was given a green light to subpoena Comcast for Malibu victims’ “six strike” data (the ISP’s register of alleged copyright infringements).

More than a year ago a controversial “six strikes” program (officially titled “Copyright Alert System“) was created by movie and music trade groups (together with the biggest ISPs) with the goal of deterring piracy. Although the program has many flaws, its creators have been stressing its educational rather than punishing nature. Nonetheless, the participating rights holders reserved the right to subpoena identities of the “most persistent” infringers with the purpose of suing them. It has not happen so far: the PR disaster that labels brought upon themselves by going after individual file-sharers is still fresh in people’s memory, and I doubt that the labels really want to step onto the same rake again: it seems that the lawsuit provision was added mostly as a strong deterrent.

So, while the actual rights holders are hesitant to pursue the litigation route, those who don’t have reputation to begin with, are now trying to camel-nose the weakest point of the program.

I already wrote about Lipscomb/Nicoletti/Schultz’s request to commence a fishing expedition to Comcast’s private data storage. At that time it was only a request. This time it was granted — in two courts.

First, in Illinois, Judge Brown granted plaintiff’s motion on 6/18/2014 in the eventful Malibu Media v. John Doe (ILND 13-cv-06312). It is worth noting the usage of the word may, which can be a scrivener’s error, or (I hope!) a hint to Comcast (emphasis is mine):

It is hereby ordered that Plaintiffs Motion is granted. Plaintiff may serve a third party subpoena on Comcast in the form attached as Exhibit A to this Order, and Comcast may comply with that subpoena.

Next, in Indiana, Magistrate Dinsmore ordered that “Comcast should comply with Plaintiff’s subpoena” in Malibu Media v. Tashiro (INSD 13-cv-00205).

The last of the three known fishing attempts of this kind is pending in Michigan (Malibu Media v. John Doe, MIED 13-cv-11432). An interesting nuance here is that the trolls want to depose not only the defendant’s previous provider, Comcast (the one the defendant was using at the time of the alleged infringement), but also his new one, AT&T. Please remind me: where did we see the names of these two ISPs together in a single lawsuit? Facepalm.

Why does Malibu needs this information in the first place?

The answer is simple: the trolls don’t have sufficient evidence against the defendants to win a jury trial. Period. After examining the defendats’ hard drives, after invading the neighbors’ privacy (in Illinois Malibu interrogated defendant’s neighbors with the court permission), the trolls still want a very vague data that cannot prove much to begin with!

Comcast must intervene

I understand that Comcast is overwhelmed by the blizzard of subpoenas from the copyright trolls and cannot object to all of them. Nonetheless, ISPs did fight for their customers and for their reputation in the past. The performance of their attorneys in AF Holdings v. Does 1-1058 in DC and Lightspeed v. Smith in Illinois was excellent. Again, priorities are priorities: not all cases are created equal: some warrant picking up a fight, and some are simply critical.

This is such a case. Complying with these overreach subpoenas without giving a good fight will open a can of worms, no doubt. Today it is the “six strikes” data; tomorrow it will be the browsing history. Since the entire trolling “business” is premised on the pressure to settle rather than collecting evidence for a jury trial, every tiny bit of the victim’s privacy that trolls put their fingers on will be used to extract a ransom. None of us are completely free of vices. Everyone has something deeply private that can be leveraged by blackmailers.

A gruesome analogy

I’m risking to be prosecuted according to the Godwin’s Law, but I can’t stop thinking about the following analogy. As the Swedish Pirate Party founder Rick Falkvinge wrote in one of his articles,

The Netherlands used to keep track of people’s religion as part of the public records. The intent was noble as always: by keeping track of how many Jews, Catholics, and Protestants there were in a city and its different parts, you would be able to plan for an appropriate amount of synagogues, Protestant churches, and Catholic churches, their proportion to one another, and so on.

Then, World War II came around.

There were almost no Jews at all in the Netherlands after World War II. According to Wikipedia, less than 10% survived (14,346, compared to an earlier population of 154,887). As it turns out, it was very convenient for the… new administration… to have access to the collected data, and it was indeed used against the citizens, as it always is in the end.

The difference here is that we are not talking about the government, yet the alliance of the copyright cartel and ISPs is no less scary when it comes to data retention, even for “educational purposes.” Was “six strikes” conceived in good faith? Maybe. Is it about to be cynically abused by the porn trolls? Hell, yes.

 


¹6/30/2014 update: Techdirt also paid attention to this news.

By a lie a man throws away and, as it were, annihilates his dignity as a man.

Immanuel Kant

 

In a recent report requested by an ILDN Judge Milton Shadur, copyright troll M. Keith Lipscomb (via a local marionette Mary K. Schulz) claimed (emphasis is mine):

Malibu has adopted high standards prior to serving a Defendant and in some cases has determined to not pursue a case based on insufficient evidence. Examples of scenarios in which Malibu may dismiss based on insufficient evidence include: multiple roommates within one residence with similar profiles and interests share a single Internet connection; the defendant has left the country and cannot be located; the results of additional surveillance do not specifically match profile interests or occupation of Defendant or other authorized users of the Internet connection; the subscriber is a small business with public Wi-Fi access, etc.

Apparently, Lipscomb’s definition of “high standards” does not include such a basic virtue as truthfulness. Today I learned¹ from a defendant’s motion to dismiss one of the 2,365+ Malibu Media’s cases that the claims plaintiff makes are exaggerated (to put it mildly). The motion was filed by an Illinois attorney Jonathan Phillips in Malibu Media v. John Doe (NDIL 13-cv-08484):

Malibu has been made aware that the Defendant is a business, and incapable of doing anything, let alone infringing a work. Despite this, Malibu has failed to amend its Complaint.

The motion seeks dismissal not because of this fact though. Lipscomb/Nicoletti/Schultz apparently abandoned this case and failed to serve the defendant within 120 days of filing of the complaint, as the Rule 4(m) mandates:

The time period, over one hundred days beyond deadline, is indicative of Malibu’s want of prosecution. Counsel for Doe has repeatedly sought information on why service was not had. For example, recent emails on June 9, June 20, and June 23 all raised the issue. Not a single email received a response. No summons has been issued, no service has been had, and no request for a waiver of service has been received by counsel for Doe.

Lipscomb lost his credibility long time ago, and this is yet another confirmation: his pathetic statements are as genuine as the moans in the porn flicks he is shaking down people over.

 

Update

6/26/2014

Today, right after Phillips’s motion was filed and Malibu’s malicious sloppiness made the news, Nicoletti rushed to dismiss this case without prejudice, or, in other words, attempted to cut and run in a hope that no attorney fees will be awarded against him and Schultz for their chronic lack of candor.

 

“Not so fast!” — said Magistrate Michael T. Mason:

 


¹I want to take an occasion to give a shout-out to Calvin Li, who wrote a program that scans Pacer for new Malibu Media filings and tweets the results in real time. That’s why we learn about new significant events right away.

William E. Tabot
William E. Tabot

We still remember copyright troll M. Keith Lipscomb’s previous crusade to Virginia: it did not end very well. Lipscomb’s local, Wayne O’Bryan, was scolded by Judge Gibney, who smelled the air of extortion in mass bittorent lawsuits. After more than two and a half years, the transcript of O’Bryan dance around the truth in front of the judge is still a fascinating read¹. O’Bryan narrowly escaped sanctions, and Lipscomb left Virginia’s turf since then, letting his colleagues from Prenda rein there for a while. Today Lipscomb and his German supervisors are back to plunder the citizens of this state.

In June 2014, 19 new Malibu Media lawsuits suddenly popped up in the VAED: all of them have been filed by a previously unknown attorney William E. Tabot (a sample complaint is embedded below). Maybe as a result of my polite greeting (cc’d to My Doctor Cameroon, an organization Mr. Tabot represents as a counsel), maybe because Tabot’s involvement was planned as minimal at the very beginning, on 6/21/2014 Lipscomb’s local Jon Hoppe (Maryland/DC) applied for pro hac vice admission in all the 19 cases.

But here is a small problem. Thanks to Virginia attorney Robert Powers for the tip: according to Virginia’s pro hac vice admission rules,

(5)Discretion and Limitation on Number of Matters. The grant or denial of a motion pursuant to this rule by the tribunal is discretionary. The tribunal shall deny the motion if the out-of-state lawyer has been previously admitted pro hac vice before any tribunal or tribunals in Virginia in twelve (12) cases within the last twelve (12) months preceding the date of the current application. In the enforcement of this limitation, the tribunal may consider whether the pending case is a related or consolidated matter for which the out-of-state lawyer has previously applied to appear pro hac vice. Before ruling on a pro hac vice motion, the court shall verify with the Supreme Court of Virginia the number of cases during the preceding twelve (12) months in which the out-of-state lawyer was admitted in Virginia pro hac vice.

…which puts a big fat question mark next to Hoppe’s “Esq” suffix. Apparently, an attorney in his 50s is too experienced to read the rules of admission before applying. Or to remember the basic math to notice that 19 > 12.

So far judges have been rubberstamping requests for ex-parte discovery, and at least six admission motions have been granted. It will be interesting to watch judges’ reaction when/if they notice the bigger picture.

Given that copyright trolling is as harmful to the society as tyranny (both make a mockery of justice), will Virginia live up to its motto?

 

Update

7/13/2014

In 17 out of 19 Malibu Media cases filed in Virginia on 6/11/2014, Jonathan Hoppe’s pro hac vice application was granted, which is a clear violation of the Virginia State Bar Rule 1A:4(5), allowing an out-of-state attorney to appear in no more than 12 cases simultaneously. I’m sure that the first Doe who files an answer/motion to dismiss will convey this evident violation to the judges.

 


¹That time Lipscomb “represented” not only Malibu Media, but also their colleagues — other hardcore pornographers, including K-Beech, which is owned by a former Mafioso Kevin Beechum (who organized bombings and “smashings” of adult bookstores back in 1990s).