Posts Tagged ‘Malibu Media’

Nicoletti
Copyright troll Paul Nicoletti

Is it a fraud if an attorney files a motion for extension of time to serve a defendant two full days after the said defendant was already served? If it was done intentionally — definitely yes. I don’t believe it was the case, though, when a copyright troll Paul Nicoletti asked the court to extend the time to serve at 3:45 pm on Monday, 11/10/2014, while the defendant was already served at 11:45 am on 11/8/2014 (Malibu Media v. David Grant, INSD 14-cv-00740). He simply didn’t know, and didn’t bother to pick up the phone and check. No, it was not a fraud this time, but a total lack of diligence, an essential quality of an attorney. Well, this is hardly surprising: once a crook, always a crook. In addition, Nicoletti didn’t notify the court once the blooper was discovered, and after over a month passed since the service, a motion for default judgment was hastily filed; this motion mentions the actual service date.

Note that Nicoletti filed three motions for extension of time in this case. Trolls’ MO is to delay proceeds as much as possible (sometimes to the extent that would surprise Kafka), and if/when finally served, defendant doesn’t answer in 21 days, the troll immediately fileds for a default.

There is actually an explanation to what has happened in this particular case. When I started investigating, I found out that the process server didn’t communicate with Nicoletti at all: she took an order and reported the execution of the service (on November 10 at 2:35 pm) to an individual named Mike Thornton — Keith Lipscomb’s former non-attorney extortion officer who currently coordinates shakedown activities behind the scenes out of a Chicago Western suburb. Today Lipscomb is shy to mention the wild times of mass extortion lawsuits, including his abuse of Florida’s Pure Bill of Discovery (thanks to this loophole, he and John Steele made an obscene amount of money robbing US citizens). At that time Mike Thornton, falsely claiming that he was an attorney, intimidated and harassed people over the phone, wrestling them into paying ransoms (just like Prenda’s Mark Lutz).

Here is what people said about Mike Thornton in 2011:

Nasty little man… made me believe he was an attorney although he didn’t say that. Trying to strong arm me into paying over $2300 for downloading a movie… College Cock Hounds… I am 56 yrs old married for 20+ years. I don’t think so. Threatens me with litigation… $30,000.00.. My answer was to go ahead and sue me. I will see them in court. Would not give me his company name. He is or was a debt collector. He does not have attorneys in any other state than Florida. His name is Mike Thornton. He will intimate you if he can.

This guy subpoenaed my ISP for records from an attorney named Ryan Stevens in Arizona. He then called me and claimed he had proof that I had illegally downloaded porn and his clients were willing to settle out of court for $25.000. I told him I had done no such thing and wasn’t paying anything. He then got loud and abusive and said that he would take it to court and make this accusation public record if I didn’t settle. I told him #1 I did no such thing, #2 I am an disabled vet and he could not sue me and get anything. He then said he would turn the evidence over to the authorities and I would be prosecuted for a felony. He called me from 818-292-8194 in California. There were 250 IP addresses on the subpoena. Can anyone tell me what the real deal is with this guy, how this played out for you, and how I can shut this guy down?

Demanding money in exchange for not reporting a crime is the textbook definition of criminal blackmail, and still, Lipscomb & his gang has been clandestinely employing this sleazeball all the time. Another “negotiator” from the past, Elizabeth Jones, is also still employed, despite the trolls’ attempts to make an impression that she retired.

As for Nicoletti, this episode suggests that local trolls can’t even fart without the Troll Center permission: I heard stories about local attorneys not answering defense’s simplest questions for weeks. While it is obvious that local representatives are not really involved, if they sign their names on pleadings and motions (even without reading), it’s a fair game to call them unprofessional.

Mike Thornton deletes his email account

I’m actually not convinced that “Mike Thornton” is a real name, neither am I sure about “Anthony Palmer” (another “collector” from 2012) and “Elizabeth Jones.” All the three names are too common.

The email thorntonmike4@gmail.com was apparently deleted after the crooks discovered that I’m aware of its existence. That raises brows. I urge government investigators to subpoena this account while the information is retained by Google. Thornton’s IP address was 71.194.100.159 at 14:50 on 1/15/2015.

Thanks to Raul for discovering the discrepancy in the docket.

On Friday 1/23/2015, FLMD Judge Merryday did not buy Keith Lipscomb’s excuses, denied Malibu Media’s motions for extension of time to serve defendant in four Malibu Media cases (14-cv-02341, 14-cv-02347, 14-cv-02359, 14-cv-02338), and dismissed those cases for good.

“Damages above that which would Make it Whole”

These dismissals were preceded by a motion to quash/dismiss/protective order filed by a defense attorney Bill Wohlsifer in Malibu Media v Doe (FLMD 14-cv-02341) on 1/14/2015. This motion (specifically the dismiss part) raises an interesting argument: the plaintiff cannot recover the statutory damages from individual members of the same Bittorent swarm in separate actions. As an example, the defendant notes a virtually identical Ohio case (same swarm, almost the same time).

The defendant argues that Malibu implicitly assumed swarm-wide joint and several liability, thus the plaintiff is estopped from demanding statutory damages individually:

MALIBU cannot have it both ways. Thus, if the Court were to find that Plaintiff sufficiently implied commonality in the same transaction or occurrence or joint and several liability (despite the omission of any such language), by pleading same swarm/hash, the remedy is inconsistent with the cause of action, fails to state a cause of action, and must be dismissed because the complaint seeks non-cumulative statutory damages per defendant.

In addition, Wohlsifer calls out Lipscomb’s predatory practice of collecting (via settlements) way more monies from named and unnamed defendants than the plaintiff is entitled to:

MALIBU seeks damages above that which would make it whole. Accordingly, Plaintiff may only seek damages per swarm, not per defendant. Moreover, it is not out of the realm of possibilities that Plaintiff may have already been made whole by alleged members of this swarm prior to bringing this action.

 

This above that which would make it whole concept resonates with Booth Sweet’s one satisfaction rule argument. Last week Dan Booth published a must-read article “The ‘One Satisfaction’ Rule: A New Approach to Curbing Copyright Trolls” in the Landslide (an ABA Journal). This theory is currently being tested in Malibu Media v David Ricupero (OHSD 14-cv-00821).

I like this trend and have big hopes that these ideas gain traction: if Malibu’s and other trolls’ multiple-ransom-for-one-work gravy train derails, it will severely neuter their extortion racket.

Alas, 14-cv-02341 and the other cases assigned to Judge Merryday were not dismissed based on the merits of the defendant’s motion, but because of the failure to timely serve defendants, as we will see below. As Bill Wohlsifer noted,

This is a bitter-sweet result as I am glad the case was dismissed so that the plaintiff takes nothing by way of its lawsuit and my client can return to life without the threat of a civil suit, but I was looking forward to a court ruling on the defensive motion I filed.

Order to show cause, followed by lame excuse, followed by dismissal

US Federal Judge
Steven Merryday

On the very same day (1/14/2015) Lipscomb filed a bunch of motions in this and other FLMD cases to extend time to serve defendants — motions very consistent with his tactics of frivolously delaying the proceeds. He argues that because his ex parte motion for discovery was granted only on 12/2/2014, ISP didn’t have time to cough up the subscriber’s information.

Judge Steven Merryday was not impressed: he noticed that the Rule 4m’s 120-day complaint-to-service period was about to expire and wanted to know why it took so long to move for discovery (around two months from the lawsuit inception). Thus, he orders to show cause in this and three other cases assigned to him:

Seventy-six days passed between the start of this action and the issuance of the plaintiff’s subpoena, and the plaintiff offers no reason for the delay. Accordingly, the plaintiff fails to offer sufficient information to determine whether the plaintiff pursued this action with due diligence.

Lipscomb responded on 1/22/2015 with a facepalm-inducing reasoning:

1. On September 12, 2014, the paralegal at undersigned’s office in charge of calendaring deadlines and filing motions went on maternity leave.

[…]

5. Because of the transition between office staff, Plaintiff’s Motion was unintentionally not filed with the complaint.

You get the idea. It is not easy to take this excuse seriously, isn’t it? The judge was not impressed either (even less impressed than at the time of OSC), so he denied the motions for extension and dismissed this and three other cases:

 

While reading Lipscomb’s lame excuse, I noticed the following (emphasis is mine):

Although Plaintiff’s Motion had been drafted and was ready for filing, the paralegal hired to replace the paralegal who left was still getting acquainted with this office’s practices and procedures and trying to familiarize herself with the firm’s expansive caseload and status of each case.

I think that this “explanation” runs afoul of the clear requirement of the Florida Rules of Professional Conduct:

A lawyer’s workload should be controlled so that each matter can be handled adequately.

Even if the paralegal story was indeed the reason for the delay, having the single point of failure like this was very unprofessional.

So, essentially Keith Lipscomb presents a violation of the Rules of Professional conduct as an excuse. Nice. Even the classic “dog ate my ex parte motion” explanation would be more appropriate.

There is more. Lipscomb claims that (emphasis is mine)

This deviation occurred in a very small number of cases and was caused by the staffing transition. Until the firm engaged in a periodic internal audit of the lawsuits which it filed and oversees, this mistake was not caught. As soon as it was noticed however remedial action was taken.

My bullshit-meter was triggered, so I checked the other dockets and discovered that in these four cases the discovery motion dates span 10/30/2014 to 11/14/2014 — more than two weeks. Assuming that the mistake “was caught” at the end of October, why did it take two weeks to take the “remedial action”?

Lipscomb and his gang continue to molest the courts and plunder the citizenry. And he does it pretty sloppily: any time I have a cursory look, I immediately uncover inconsistences and contradictions. It is heartwarming to see that at least some judges are allergic to Lipscomb’s BS while other courts blindly trust even the crookest “officers of the court.”

We have been impatiently waiting for Judge Rice’s order on the defendant’s motion for attorney fees in a landmark Bittorent lawsuit Elf-Man v. Lamberson (WAED 13-cv-00395). It was a long and exhausting battle: please read my previous coverage. DieTrollDie also paid close attention to the developments in this case.

So, today we have this long anticipated decision, and it is good:

[…]IT IS HEREBY ORDERED:

1. Defendant’s Motion for Attorneys’ Fees (ECF No. 175) is GRANTED
in part and DENIED in part. Defendant is awarded attorney fees in the amount
of $100,961. […]

While the defendant asked for $200K, his demands were cut in half: a reduction of fees is traditional in this game, so I hope that the defense is satisfied with the outcome. There is a funny part: even after the judge awarded the fees in principle and his final decision addressing the exact amount was pending, the plaintiff offered to compensate the defendant in the amount of… $5,000.


US Federal Judge
Thomas Rice

Judge Thomas Rice recently made headlines with his statement that high statutory rates in this type of cases may run afoul of the Eight Amendment to the US Constitution. Alas, the judge stopped short of addressing the well-documented allegations of massive fraud upon the US courts by this and similar plaintiffs — Judge Rice simply ignored the evidence provided by the defense over the course of the litigation. This evidence resulted from the defendant’s attorney Chris Lynch enormous research of the “German trail.” This case has been closed, but Lynch’s findings don’t disappear with the case closure, and we will continue analyzing and investigating the international copyright shakedown Mafia and will report on new discoveries.

While this is a big victory over the law abusers, I regret to note that the predatory practice continues unabated: troll David Lowe (one of the plaintiff’s attorneys) still files fraudulent lawsuits in the State of Washington, and his brothers-in-scams in other states are busy extorting citizenry. I hope not for long. If the evidence substantiating one particular fraud — fake declarations and forged signatures filed in nearly 200 cases nationwide — reaches its critical mass and attracts interest of the FBI, we will see a downfall bigger than Prenda’s.

Congratulations to Ryan Lamberson, whose innocence was vindicated, and to his attorney Chris Lynch, whose titanic efforts and superb skills made it possible!

Media coverage

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The Eighth Amendment to the US Constitution

 


US Federal Judge
Thomas Rice

On 10/31/2014 Washington Eastern District Judge Thomas Rice decided not to sanction copyright trolls Maureen VanderMay, David Lowe and Carl Crowell in Elf-Man v. Lamberson (WAED 13-cv-00395), yet he granted the defendant’s attorney fees (the amount is yet to be determined). On the same day Judge Rice ruled on the motions for default judgments in two APMC-driven cases: Elf-Man, LLC v. Does 1-29 (WAED 13-cv-00115 — the case Lamberson was spawned from) and a very similar copyright shakedown case The Thompson Film, LLV v. Does 1-35 (WAED 13-cv-00126):

 

In these two cases the plaintiff requested $30,000 from each of the 11 defendants who failed to answer to the complaints. This would result in $330,000 — a 14x return on the $23,700 investment ($700 in filing fees plus $23,012.57 attorney fees as costs, as determined by the judge).

This request was not granted: while the judge couldn’t simply deny default judgments as the defendants were properly served, he awarded just the allowed minimum to the trolls: $750 per defendant (plus $2,250 in attorney fees).

Similar to the Lamberson ruling, these two orders are both bad news and good news. I’m utterly disappointed by the judge’s unwillingness to address the stink of abuse these lawsuits exude: in the first order (embedded below) trolls’ dances around the truth were taken for granted, and Lamberson’s attorney’s well-pled accusations were brushed off. Even the fact that Ms. VanderMay defrauded the court by filing a forged declaration of Darren Griffin was not mentioned at all.

At the same time, these orders addressed the issue I’ve been bringing up for three years — that insanely high statutory damages run afoul of the Eighth Amendment to the US Constitution. I’m sure I was not first to point to the obvious: for example, Stephan Kinsella argued against excessive fines in copyright. Yet to the best of my knowledge, this is the first time a federal judge brings this topic in a mass Bittorent case¹.

This Court finds an award of $30,000 for each defendant would be an excessive punishment considering the seriousness of each Defendant’s conduct and the sum of money at issue. Although Plaintiff contends the minimal revenue lost from each Defendant’s single transaction does not account for the extent of damages, this Court is unpersuaded that the remote damages — “downstream revenue” and destroyed plans for a sequel due, in part, to piracy — justify an award of $30,000 per defendant, even in light of the statute’s goal of deterrence. Instead, this Court finds Plaintiff has not made a showing justifying damages in excess of the statutory minimum. Accordingly, the Court, within its “wide latitude” of discretion, grants Plaintiff the minimum statutory award of $750 against D. & B. Barnett, jointly and severally and $750 against each remaining defaulted Defendant in the case.

In the footnote, Judge Rice further explains:

In Austin v. United States, the Supreme Court held that the Excessive Fines Clause of the Eighth Amendment applies in civil, not just criminal, proceedings. Austin v. United States, 509 U.S. 602 (1993). As the Court explained, the purpose of the Eighth Amendment is to limit the government’s power to punish, and “civil sanctions that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term.” Id. at 607-09 (applying the amendment to civil forfeiture proceedings). Undoubtedly, the statutory damages imposed for violation of copyright infringement are intended to serve a deterrent purpose, see e.g., Nintendo of Am., Inc. v. Dragon Pac. Intern, 40 F.3d 1007, 1011 (9th Cir. 1994) (recognizing the punitive and deterrent effect of the Copyright Act’s statutory damages), and thus can properly be characterized as punishment.²

Proportionality of punishment is the cornerstone of any civilized society. I can’t imagine anyone to disagree with this statement. I want to look into the eyes of an individual that claims that sharing a $20 movie warrants a fine that may result in abandoning college education or losing a house.

And yet the travesty continues.

I’m saddened and tired of observing a huge moral blind spot this country developed regarding the insanity (and unconstitutionality!) of civil fines in copyright cases. The astronomical numbers currently serve the sole purpose of threatening alleged infringers in order to wrestle them into paying a ransom. The law, created in pre-digital age to combat large-scale commercial infringement, was perverted by greedy crooks with opaque eyes. Unless the statutory damages are not abolished or at very least drastically reduced for non-commercial infringement, the international troll Mafia will continue destroying people’s lives.

 

 


¹ In Sony v. Tenenbaum, Judge Nancy Gertner in 2010 cut a jury’s damage award against the defendant from $675,000 to $67,500, saying it was “unconstitutionally excessive” and “wholly out-of-proportion,” but this decision was later reversed by the First Circuit, and the Supreme Court declined to hear an appeal.

² Furthermore, the judge compares Kafkaesque civil fines with the criminal copyright infringement liability, and this comparison (again, to the best of my knowledge) is unprecedented in a Bittorent case ruling:

As a comparator, if one of the named Defendants was found criminally liable under 17 U.S.C. § 506 for the same act of infringement, i.e., infringement in an amount less than $2,000, the U.S. Sentencing Guidelines recommend a fine between $1,000 and $10,000. USSG §§ 2B5.3, 5E1.2. Further, if that Defendant were to plead guilty with contrition, the fine would be reduced to a range between $500 and $5,000. Id § 5E1.2

Media coverage
I was astonished to find out that a teen pornography purveyor and the most litigious copyright troll in the US history Malibu Media filed 25 lawsuits in NYSD on 11/7/2014 and 11/10/2014 for the first time in more than two years.

Jacqueline M. James
Porn troll Jacquline M. James

The local troll is a solo practitioner from White Plains Jacquline M. James. I didn’t find any reputational hiccups in her career, which suggests that she was simply lazy to do a diligent research before stepping into this pile of manure. I’m willing to give her a benefit of doubt: let us see if she is willing to correct her mistake.

This move is bold and astonishing because historically New York has not been exactly friendly to trolls. Lipscomb and Co tried to shake down this state’s citizens in the past — only to be admonished by judges here and there.

The most important event was Magistrate Brown’s Order, Report and Recommendation that essentially ended mass extortion lawsuits in this state in 2012. Granted, Lipscomb ceased filing mass Doe suits long time ago, but the extortionate nature of his today’s “business” remains unchanged.

Other copyright trolls (Mike Meier, Marc Randazza) didn’t find much love in New York either. Judge Harold Baer called trolls “copyright locusts [that] have descended on the federal courts.” And Judge Victor Marrero even suggested that pornography may not be entitled to copyright protection.

So, it will be interesting to observe New York judges’ reaction to the return of the infamous porn troll.

Below is one of the cookie cutter complaints written either in the Miami Troll Central or Karlsruhe.

 

Dear trolls, today is the Veterans Day. In case you have a quantum of soul not eaten by the greed cancer yet, it’s time to reflect on your conduct. Our fathers didn’t die so you would make dirty money on selling US citizens to the German Mafia over obscene material.


US Federal Judge
Thomas Rice

A very eventful case Elf-Man v. Lamberson (WAED 13-cv-00395) is coming to its conclusion (See the extensive coverage of this case by DieTrollDie). Because of the defense counsel’s titanic investigative effort (which resulted in overwhelming evidence of ongoing brazen fraud upon the US courts by a German extortion concern Guardaley), plaintiff’s counsel Maureen VanderMay resigned citing “ethical concerns,” and finally the trolls attempted to cut and run — dismissed the entire case with prejudice — to avoid potentially devastating scrutiny.

When Judge Thomas Rice approved the dismissal, he hinted that the defense might request attorney fees.

In July Lamberson filed three post-dismissal motions: for attorney fees and costs (asking around $200,000) and two motions for sanctions: pursuant to 28 U.S.C. § 1927 and Fed. R. Civ. P. 11.

Those motions prompted a flurry of opposition, including the declarations by Lipscomb’s discredited expert Patrick Paige and two German nationals (purportedly real people): unlicensed, uneducated “investigators” Michael Patzer and Daniel Macek. The only person whose declaration was missing was Guardley’s own “Alan Cooper” — an invented “expert” Darren Griffin of a non-existing Crystal Bay Corporation: this time the Germans seemingly didn’t dare to forge a signature as they did on numerous occasions in 2013.

We expected a lot from the judge’s ruling on these motions: as time passed, we hoped that he had been preparing an Otis Wright-like smackdown, but alas, I had rather mixed feelings reading the October 31 order.

Sanctions

I start with bad news: both motions for sanctions were denied, mostly on procedural grounds: applicability of certain sanctions to certain documents (“section 1927 sanctions are unavailable for complaints”), timing and clarity of defendant’s accusations in frivolousness, etc. The judge’s analysis of requested sanctions starts on p. 11 and, while it clearly communicates his hesitancy to sanction the plaintiff’s attorneys, it nonetheless reads like an instruction to future defendants, namely what they should do in order to keep ethically handicapped attorneys accountable.


Darren Griffin

The judge absolutely ignores the accusations of champerty, forgery, fraud… He apparently doesn’t want to deal with this dirt. Maybe he is right in his own way: it is up to DOJ to investigate the racketeering enterprise, yet we know that a concerned judge has a tremendous power of nudging such investigation, which otherwise is prone to death by prioritization. Alas, not this judge, not this time.

Attorney’s Fees

This part is good news. While the amount of fees is yet to be determined (the judge found that “other than to recite the total hours expended, counsel has not provided a sufficiently detailed justification for the hours claimed,” giving defense counsel Chris Lynch a chance to submit an itemized claim), we know that the copyright law is seriously skewed towards the rights holder, and to win a fee award is anything but easy even if a defendant prevails and even in the post-Fogerty world. This unfairness is one of the pillars of the widespread abuse of judicial system by copyright trolls.

Here, Judge Rice analyses the following factors:

In determining whether fees should be awarded, courts may consider a nonexclusive list of factors, including degree of success obtained, frivolousness, motivation, objective unreasonableness (both in the factual and legal components of the case), the need in particular circumstances to advance considerations of compensation and deterrence, and whether the chilling effect of attorney fees may be too great or impose an inequitable burden on an impecunious party. […]

…and he finds that the fees must be awarded to the defendant:

First, Plaintiff dismissed all its claims against Mr. Lamberson; thus, Defendant is the prevailing party. Moreover, Defendant’s success was unqualified, as the dismissal against him was with prejudice.

Second, from this record, the Court has no basis from which to determine that Plaintiff’s claims were frivolous. The case was dismissed short of trial, so all the evidence is not before the Court.

(Well, this is the reason why trolls flourish: they fight with tooth and nail to avoid trials, so their “evidence” won’t be cross-examined in front of a jury.)

Third, Defendant contends the case against him was baseless, but the Court notes that Plaintiff has obtained stipulated relief against others on virtually the same allegations as Plaintiff asserted against Defendant.

(No, judge. “Stipulated relief” by no means proves defendant’s guilt or that the case is not baseless: the predatory lawsuits like this are calculated to extract settlement amounts slightly less than the cost of mounting a viable defense, hence even innocents settle.)

Fourth, whether Plaintiff’s claims were therefore unreasonable is likewise not determinable from this record. Plaintiff requested damages of $30,000—the full amount of statutory damages available under the Copyright Act for Lamberson’s alleged infringement. In the end, Plaintiff received nothing from Mr. Lamberson, and now nothing more can be said.

As a final point, I can’t agree more with the following:

Finally, awarding fees to Defendant will not have a chilling effect on Plaintiff’s other copyright claims. Plaintiff can pursue its valid and well-founded copyright claims with vigor, seeking both damages and fees where warranted. But Plaintiff cannot exact a pound of flesh simply by making defendants caught in its wide net expend attorney fees to defend themselves, perhaps unjustifiably. This factor weighs in favor of an award of attorney fees.

I feel that the previous paragraph will be widely quoted and I hope this somewhat toothless order will however make troll’s racket harder and costlier. And of course I hope that Lynch and Lamberson will win substantially more than a symbolic sum.

 

Update

11/24/2014

On 11/21/2014 Chris Lynch filed his Supplemental declaration in Support of defendant’s motion for Attorneys’ fees (doc. 100) asking for $215K.

If you haven’t been following this case (and the German-driven copyright trolling judicial plague in general), you may want to read the entire declaration as it contains a condensed yet illustrative and comprehensive history of the ordeal.

 

Update 2

12/13/2014

On 12/5/2014 Plaintiff (David Lowe) filed his opposition to the defendant’s fee request. Interestingly, he, redefining the meaning of the “out of touch” phrase, made a counter-offer of… 5K (see his email in the Exhibit A):

 

Defendant (Chris Lynch) responded on 12/12/2014:

 

Note that the Exhibit D is a printout of the article about very interesting developments in Australia, where our German trolls currently test the water. Of interest is that yet another Guardaley shell — Maverick UG — is listed as an “investigator” (while the “expert” is a painfully familiar Daniel Macek). The judge, despite the troll’s vocal objections, ordered the plaintiff (Dallas Buyers Club LLC, which is a member of the same shakedown gang as Elf-Man LLC) to fly the witness (Macek) to Australia for cross-examination. It will be interesting to watch Guardaley trying to weasel out of this situation.

12/17/2014 – 2/20/2014

Lowe filed a motion to strike the Supplemental Declaration of J. Christopher Lynch in Support of Defendant’s Motion for Attorneys’ Fees (104 – linked above) on 12/17/2014. Reminds me how Prenda hysterically denied the Alan Cooper fraud two years ago:

Inter alia, Lynch has no evidence or basis for fraud allegations whatsoever. There is no evidence that Griffin is a “fake person” or Crystal Bay Corporation is a “fake company.” There is only Lynch’s wild speculation, and Plaintiff has no obligation to respond to such wild and purely inflammatory allegations, let alone prove a negative. Lynch has no basis, let alone an ability, to make criminal allegations in this civil proceeding. The entirety of Lynch’s baseless arguments should be stricken.

Seriously, Lowe? Just point us to Mr. Griffin, a “real person,” and let him speak for himself. That simple — everyone will be happy. But you obviously can’t.

 

Lamberson/Lynch opposed on 12/19/2014. Pay attention to the Exhibit C — the order from an Australian Judge mentioned above.

 

12/29/2014

Lowe has his final word. The matter is now fully before the Court to decide without oral argument.

 

A couple of months ago I wrote about an interesting development in Michigan (Malibu Media v. Gerald Shekoski, MIED 13-cv-12217). When it came to discovery, the defendant’s attorneys, Derek W. Wilczynski and Lincoln G. Herweyer, were reasonably distrustful to the prospect of porn trolls rampaging through the defendant’s hard drive, accessing sensitive information and other files that have nothing to do with the plaintiff’s pornography.

Defendant would have to essentially trust [Malibu]. Yet, pornographers with an industry-sized litigation practice of coercing settlements from blameless individuals do not instill the confidence necessary to such trust.

Mr. Wilczynski wanted to engage a local independent expert to avoid a fishing expedition that would result in blackmail based on findings of possible unrelated wrongdoings.

As we will shortly see, the defense’s fears were all but unfounded.

Blackmail

While Judge Victoria Roberts didn’t agree to an independent expertise, she was apparently wary of the defense’s concerns and wrote a compromise order. Although she ordered that the hard drive examination would still be performed by Malibu’s own expert Patrick Paige, she set very strict safeguards:

If the 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. Malibu Media must report the results of the forensic examination immediately to counsel for the Defendant.

The order was issued on 7/21/2014, and it seems that the drive examination was performed shortly after that. Apparently, neither XArt’s smut nor evidence of spoliation was found. Nonetheless, in violation of a clear language of the order, plaintiff’s lawyers not only didn’t dismiss the case, but were concealing the results from the defense for more than a month:

On September 11, 2014, Plaintiff’s counsel, by omission, made Defendant’s counsel aware that the forensic examination of Defendant’s hard drive had not revealed evidence of the copyright infringement alleged in the complaint, and had not revealed any evidence that the infringing files had been deleted. However, instead of directly confessing the same, Plaintiff’s counsel stated that Plaintiff’s expert had found evidence of unrelated possible copyright infringement of a completely different than that at issue in this case.

Here is the defendant’s motion (for permission to file motion to dismiss and/or to dismiss with liability for attorneys’ fees):

 

As we read through, we can see that our trolls started a nauseous blackmail campaign despite the absence of any evidence that XArt’s smut was ever located on the defendant’s hard drive. Here is Nicoletti’s email threatening the defendant with sanctions, offering a walk-away with unacceptable terms:

 

Nicoletti
Porn troll Paul Nicoletti

What did the trolls try to leverage? Apparently the fact that the defendant’s daughter used to share music using popular free peer-to-peer software LimeWire, which took place… 5 years ago, when she was a minor. In addition, Nicoletti/Lipscomb claim that the defendant lied when answering an interrogatory about his knowledge of this fact.

First of all, Mr. Nicoletti, let me educate you, an ostensive IP attorney: the statute of limitation for copyright infringement is three years.

Secondly, as for the false statements (of not knowing that a file-sharing software was installed), the threats are beyond douchy as they suggest that the defendant should have actively policed his daughter’s computer usage.

Thirdly, the fact of buying a new computer as an evidence of wrongdoing is not even a stretch, it’s a fiction.

And finally, I challenge you to find a then-teen who either didn’t use LimeWire or didn’t know someone who did: not only it was extremely popular, it was perceived legal by the majority of its users before it was shut down by the music industry in 2010. We don’t have to dig too deep to find a good example of an innocent infringement of this sort: plaintiff’s co-owner Colette Field publicly acknowledged pirating music using a similar peer-to-peer system Napster in the past.

You know when I was 19 years old I used to download from Napster and I didn’t even know it was wrong. And then I saw some lady getting sued for $30k and I realized what I was doing was illegal and I stopped. I joined itunes, I pay for my music, I pay for Sirius. Why should people not pay for what we spend most of our time and money making. I want to get out the message that I learned about Napster, can you understand that? Thank you for reading. ~ Colette from X-Art

So, why not to blackmail your own plaintiff, Mr. Lipscomb? Obviously, she is quite capable of paying — despite her laments about evil pirates destroying her business, XArt reportedly declared more than five million dollar revenue on its 2013 tax return.

Where are you, Mr. Lutz Paige?

Basically, Lipscomb/Nicoletti/Paige violated every paragraph of the 7/21 court order.

The judge was not happy, and after a short telephone conference on 9/16/2014, she gave our trolls one more chance (or a rope?) to do what the previous order unambiguously said:

Patrick Paige must supplement his affidavit by September 23, 2014. The affidavit must answer the questions: (1) Did Mr. Paige find evidence of copyright infringement as alleged in the Complaint? (2) Did Mr. Paige find evidence of deletion of infringing files?

On 9/23 however, Malibu filed a motion for extension of time for one day, claiming that

2. Because of a clerical calendaring error, Plaintiff did not notice the deadline until after business hours, which made it impossible to secure the supplement from Patrick Paige.

3. As such, Plaintiff requests one (1) additional day for Patrick Paige to supplement his affidavit.

Well, no matter how phony this excuse sounded, the judge granted a one-day extension, as asked: no more, no less. Since then — silence. At the time of the writing, i.e. four days after the extended deadline, no affidavit can be found on the docket. I bet that the crafty young lawyers at the 2 South Biscayne Drive are still restlessly brainstorming a graceful exit from this Prenda-like situation.

I can’t help drawing a parallel with the games Prenda played in the Minnesota and California courts when the purported boss of bogus corporations Mark Lutz was ordered but failed to appear in judges’ courtrooms.

 

This is not the first time when Lipscomb & Co threatens an obviously innocent person. One of the most egregious examples is Malibu Media v. Pelizzo, a case that is currently on appeal.

Given the Kafkaesque disconnect between actual and statutory damages in the Copyright Law and the general hostility of the judicial process to an individual, it is quite disgusting when trolls twist defendants’ hands even based on more or less plausible proof of wrongdoing. It is way more troublesome when porn trolls behave as Mafia and attempt to extort money from people who haven’t wronged the plaintiff in any way.

Update

10/6/2014

Today we finally heard from the court. Judge Roberts issued an order granting defense’s request to file a motion to dismiss and for fees (reminder: the judge put a moratorium on motions, and the motion featured above was technically a request to leave to file a motion to dismiss). She also set the reply-response schedule:

1. Plaintiff’s Motion to Dismiss must be filed by: 10/16/14
2. Defendant’s Response Brief must be filed by: 11/10/14
3. Plaintiff’s Reply Brief must be filed by: 11/20/14

The absence of Paige’s supplement on the docket is puzzling: I guess this issue was discussed during the 10/2 phone conference and the trolls seemingly got away with breaking the judge’s order. This time.

Followup

11/17/2014

Would you hire an attorney who is afraid to pick up the phone when an opposing counsel is calling? Me neither.

Last week I was happy to find out that Jason Sweet for the first time appeared on behalf of a defendant in one of the myriad shakedown cases filed by Guardaley / Keith Lipscomb “on behalf” of a hardcore pornography purveyor X-Art/Malibu Media.

There was a good motion to quash subpoena filed in Malibu Media v. John Doe (OHSD 14-cv-00493) on 8/22/2014. The crux of the argument is, in my opinion, bulletproof: if the Doe is represented and his/her attorney is willing to accept service and otherwise be a buffer between the plaintiff and the defendant, there is no need for Lipscomb to prematurely know the defendant’s identity. Hence, the subpoena is moot.

The most interesting part of this motion, however, is Exhibit A — the email exchange between Jason Sweet and Malibu’s Yousef Faroniya.

The leitmotif of this exchange is the defense’s repeated attempts to establish a dialog and Faroniya’s irrational fear of the telephone. This eyebrow-raising behavior made Sweet believe that it was not actually Faroniya who was on the other side of the conversation:

Atty. Sweet, counsel for the Defendant, first reached out to Malibu Media’s counsel on July 31, 2014 to inquire about a possible settlement. From the outset, Malibu Media’s counsel refused to speak via the phone, requiring communication via email—which left Defendant’s counsel dubious as to who he was conversing with.

Looking at the style of the writing, I rather think that it was indeed Faroniya, but I can’t vouch for that. I think that it was Faroniya because: first, I have not seen this style in the writings by his bosses from the Miami Troll Central; secondly, a snarky attempt to lecture an attorney who was instrumental in Prenda’s demise is a hallmark of a young arrogant prick such as Yousef.

Just look at this:

The language in this Complaint has been attacked by dozens of defendants and Malibu Media has never lost a motion to dismiss. The case law on this is extensive. If you feel that you have an angle that could result in dismissal prior to ISP discovery on all the Malibu Media cases, then nothing I can say will dissuade you from eventually doing so. It is my strong belief that you will fail in this pursuit, and the costs incurred by Malibu in defeating your motions will eventually be borne by your clients.

Compare this overconfidence to the arrogance of infamous John Steele: here is one of his comments on this blog at the time his racket was going smoothly:

When Freetards file their silly MTQ. and they keep getting rejected, its [sic] because your [sic] telling the judge, “Judge I know you looked at this case, and issued an order. But let me tell you (in a completely conclusory, non-legal argument) why you are a fool that made a mistake. Here is a news flash, the judges know from day one all about our cases, and have spoken amongst themselves about these cases in judicial conferences. They know when they sign a discovery order what it means.

I’m sure that sooner or later we will laugh at Libscomb’s young crafty attorneys’ hubris as we laugh at Steele’s today.


Copyright troll Yousef Faroniya
is looking at the phone with fear

Later in the email chain we see threats of sanctions (of course! — threats is the language of extortion) over Sweet’s alleged interference with subpoena — a controversy that would be easily resolved if Faroniya overcame his phobia and picked up the damn phone.

And finally,

[…] once Defendant’s counsel began asking pointed questions, Plaintiff’s counsel ceased any meaningful communications.

Note that during the course of correspondence, the plaintiff kept attempting to learn the defendant’s identity: as I understand, to figure out if the Doe is capable of paying the ransom.

 

It is hard not to admire Booth Sweet’s style:

The settlement demand:

As you can see in Plaintiff’s Complaint, your client infringed a total of 30 separate works. Plaintiff is willing to settle for $22,500 (750*30). My client believes this is a fair offer given the $2250 per work decisional authority in the Malibu Media Bellwether case.

…was met with a counter-offer:

My client is willing to pay $449.95 — the cost of filing the Complaint and a one month subscription to Plaintiffʼs website.

While chuckling over this hilarity, I want to note that Jason Sweet is too generous: X-Art subscription with unlimited downloads is only $19.95 per month now, and if a subscriber gets bored with repetitive scenarios (or, more precisely, the lack thereof) and cancels the subscription, he is offered a promotional rate of $9.99, or 1.8 cents per flick if the subscriber has enough bandwidth and desire to download them all, a long shot from $750 the trolls demand, much less than $150,000 they threaten with (0.0024% and 0.00001% respectively). This is the travesty of the freedom to choose statutory damages even when they parsecs apart from the real ones.

Update

9/29/2014

The appearance of Booth Sweet understandably alarmed the trolls. On 9/12/2014 Lipscomb filed a long and winding opposition to the motion to quash discussed above. The entire opposition is rather a laughable attempt to legitimize Malibu’s abuse of the court system.

Of course, the trolls employed an appeal to emotion — a tearful story of poor pornographers who can afford neither Bugatti nor a castle in Nice and doomed to languish in a 16-million Malibu mansion and hide their Ferrari from the neighbors in shame — all because of evil, evil pirates. In addition, Lipscomb never fails to brandish the bellwether trial myth.

Jason Sweet’s 9/26/2014 reply was, as expected, sharp and fun to read. It starts with the debunking of the said myth:

As an initial matter, Malibu Media often touts the aforementioned “bellwether trial” to distinguish itself from other copyright trolls. Invariably though, they overstate the significance of what has been described as little more than a show trial, and avoid mentioning the facts that led to it.

…and proceeds to thoroughly expose Lipscomb’s poor argument why he needs the defendant’s identity when the defense counsel is ready to accept service. More than once Lipscomb affirmatively stated that the express purpose of the subpoena is to serve the defendant. While the troll was lying, his words nonetheless ricocheted.

Malibu Media has not been honest with the Court. It pushed for expedited discovery on the grounds it was necessary to complete service, but when presented with an alternative method — namely, serving the Defendant’s attorney — it refuses to effectuate service.

Instead, we learn that Malibu Media seeks the information not to serve the Defendant, but rather so it may conduct an unfettered assessment of the strength of its case and ostensibly, the assets of the Defendant before proceeding any further. Neither instance falls within the intended purpose of expedited discovery or the Copyright Act.

 

Update 2

10/03/2014
The trolls are seriously scared by the prospect of creating a precedent that courts would allow serving an anonymous defendant through his/her attorney. So on 10/3/2014 Lipscomb & Co filed a motion for leave to file a sur-reply claiming that Jason Sweet raises new arguments in his reply. It is both sad and funny that paragraph 6(A) is exactly the argument that Prenda’s racket was largely based on, namely that defendant has no standing to question the subpoena:

[…] Further, Defendant does not have standing to raise this argument because he is not facing any inconvenience, burden, or expense. Indeed, the ISP is the one responding to the subpoena and they have not objected to compliance. […] (“The Sixth Circuit has observed that ‘[o]rdinarily, a party has no standing to seek to quash a subpoena issued to someone who is not a party to the action unless the party claims some personal right or privilege with regard to the documents sought.”)

Sounds familiar?

Yesterday defense attorney Francisco Ferreiro appealed a federal court’s decision denying attorney fees in Malibu Media v. Leo Pelizzo (FLSD 12-cv-22768).

To the best of my knowledge, this is the first appeal (CA11 14-11795) of a court decision in a Guardaley-driven lawsuit. M. Keith Lipscomb and its “client” X-Art are slowly but surely following Prenda’s footsteps. Prenda’s appellate experience so far was a total disaster for its disgraced attorneys, and I hope the same fate is awaiting Keith Lipscomb, Michael Hierl, Paul Lesko et al (the list is depressingly long).

To refresh your memory, the Pelizzo case was probably the most disgusting porn troll’s assault on an innocent citizen. 100% knowing that Mr. Pelizzo had absolutely nothing to do with the alleged infringements, Lipscomb continued twisting the defendant’s arms for months.

The apogee of douchebaggery was an email to the defense counsel (again, keep in mind that at that time Lipscomb knew with absolute certainty that the defendant is innocent):

[…] you should counsel [your client] that when he loses, he will lose everything he owns and owe my clients hundreds of thousands of dollars. Mark these words, your client’s decision to reject a walk away will be the worst decision he will ever make.

The reason behind this stinky vitriol was the defense’s rather modest request for attorney fees. While making millions on selling out his compatriots to the German Mafia, Lipscomb went postal over about five thousand dollars.

Why didn’t Lipscomb cut and run earlier, as soon as he realized that he targeted a wrong person, when hostilities didn’t go that far and when it was much cheaper to buy his way out of the looming PR disaster? I have no idea. I can only speculate that he thought that admitting a mistake would endanger his future shakedown activities, or the enormously swelled ego of our insecure ostensive Christian was the actual decision maker.

Unfortunately, Judge Patricia Sietz only partially granted attorney fees to the de-facto prevailing party — defense. The defendant didn’t think it was fair, hence the appeal:

 

While federal judges continue buying copyright troll’s lies and closing their eyes to the obvious fraud, I want to believe that appellate judges think not only about following the letter of the law, but care about its spirit, about the negative societal impact of decisions made by the lower courts.

I wish Francesco Ferreiro and his client to prevail.

Update

9/16/2014

On 9/15/2014 the troll filed the appellee’s brief and a motion for attorney fees (which is unusual and inexplicably douchy, IMO).

tl;dr: Lipscomb is a good guy who didn’t shake down a clearly innocent person over barely legal, illegally produced pornography. Even more, Keith went to great lengths to save defendant’s money (furthering the purposes of the Copyright Act in the process)! On the other hand, Leo Pelizzo and his counsel Francisco Ferreiro are bad guys who have been trying to shake down our paragons of ethics by frivolously multiplying proceedings. Well… Hypocrisy is a bottomless pit.

 

Update 2

10/9/2014

Today Francisco Ferreiro filed defendant’s response in opposition to Appelee’s motion for attorney’s fees and costs.

There are many good responses to copyright trolls’ activities these days. This opposition to Malibu Media’s attempt to game the courts by filing a last-minute motion for enlargement of time to complete discovery caught my attention for the reasons described below, especially the last one — the one that gave the title to this post.

The motion was filed on 8/4/2014 in Malibu Media v. Eric Siegel (PAED 13-cv-06252) by a New Jersey attorney Darth Newman.

Protective order gamesmanship

First, Mr. Newman describes a painfully familiar Lipscomb’s modus operandi: trolls drag their feet till the last moment (often declining defendant’s offers to examine his/her hardware), and then suddenly request an extension. Rinse, repeat.

This case wasn’t different:

The Court’s April 25, 2014 scheduling Order set forth a bifurcated discovery plan whereby Malibu was obligated to complete certain discovery, primarily focused on Mr. Siegel and his computer hard drives, before moving on to the expansive third party discovery initially sought by Malibu. Malibu has failed to timely pursue even this first category of discovery.

In the several months since the initial conference, Malibu has only pursued document requests and interrogatories, to which Mr. Siegel provided timely responses.

Then, what supposed to be simple protective order negotiations, turned out to be a delay tactic: Malibu kept insisting on unacceptable terms:

On July 14, Mr. Fiore finally sent an alternative protective order but this draft was both limited to the examination of Mr. Siegel’s computers and purported to expand the materials Mr. Siegel had agreed to produce to include his tenant’s personal property. The July 14 draft failed entirely to protect Mr. Siegel’s confidential and personal information.

One-way discovery

We witnessed many times in the past: the crooks want to know everything about the defendant (including his/her purported porn habits), but when it comes to production of plaintiff’s relevant information, all we see is desperate attempts to obstruct the due process.

Not only has Malibu been slow with respect to making discovery requests, it has also been sluggish to respond fully to Mr. Siegel’s discovery requests. Mr. Siegel propounded requests for documents and, although it timely responded, Malibu interposed a number of frivolous objections and seemingly arbitrary limitations on the materials it would agree to produce.

Malibu offered to produce some documents and counsel have traded correspondence about Malibu’s objections and limitations, but, to date, the only documents Malibu has actually produced are copies of copyright registrations which are publicly available online.

Jessica Fernandez
Porn troll Jessica Fernandez
A side note: who is in charge?

If you look into the Exibit A (email correspondence between Malibu’s local Chis Fiore and Darth Newman), you will find yet another proof that Fiore is simply a pawn: he merely forwards documents to and from the Troll Center (Lipscomb’s associate Jessica Fernandez curated this litigation):

 

Where is the evidence?

The apotheoses of plaintiff’s thuggery, and the fact that prompted this post, was the admission that the troll don’t even have the most critical information handy:

Malibu agreed to produce a limited portion of the electronic materials it intends to rely on to prove its case but has indicated that doing so will take an additional four weeks. Did Malibu not have this information when it filed suit?

Read it again and try to believe your eyes: these charlatans file lawsuits en masse indiscriminately and don’t even possess the information that forms the basis of their cases:

In particular, Malibu agreed to produce a subset of the data it claims shows Malibu’s investigator’s alleged connection(s) to Mr. Siegel’s IP address and the data allegedly downloaded from Mr. Siegel. This data forms the basis of Malibu’s case and Mr. Siegel and his expert(s) must have a fair opportunity to analyze all of it.

In my opinion, this is yet another visible sign of a gross abuse; it is very frustrating that courts around the country continue to swallow trolls’ bluff so eagerly.

The reason I use the word bluff is in part premised on recent events in a case involving another Guardaley-driven lawsuit, Elf-Man v. Lamberson (WAED 13-cv-00395). It appears that the trolls in that case simply don’t have any incriminating data beyond a TCP/IP handshake and transmission of a part of a movie that is shorter than an average wink. It is not a big stretch to suggest that the same game is being played here. Moreover, no one ever saw any Guardaley’s evidence: all we saw was a smokescreen of “PCAPs,” “WORM tapes” and “German government issued timestamps.”

There is simply no valid reason why producing the most essential evidence can take an entire month. Not only is the king naked, he doesn’t even wear sunscreen to withstand the sunlight of even a casual scrutiny.