Posts Tagged ‘x-art’

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.

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).

In Elf Man v. Lamberson (WAED 13-cv-00395) the plaintiff filed a motion to dismiss the case with prejudice. No, defendant did not settle succumbing to threats. Quite the opposite: after being presented with undeniable evidence of unethical and possibly illegal conduct by the plaintiff, the trolling house of cards started disintegrating quickly, and yesterday the plaintiff attempted to disgracefully run away like a petty thief caught with a stolen pack of cigarettes.

I refer the readers to DieTrollDie’s reporting on this case for the full history. Below is a very short recap: this case was so eventful that I would keep writing this post for days if I covered every detail.

Short history
Maureen Vandermay
Maureen VanderMay

Mr. Lamberson was sued by a one-copyright shell Elf-Man LLC, initially as one of 29 anonymous Doe defendants. Every defendant was named in the amended complaint after Charter communications coughed up their customers’ information to plaintiff’s lawyer Maureen VanderMay.

Mr. Lamberson was lucky to hire attorney Christopher Lynch, who started methodically dismantling the bluff — plaintiff’s “evidence.” There were many eyebrow-raising discoveries made over the last months worthy of a detective story. A very questionable copyright assignment invoked the memories of Righthaven. Ostensive German experts Daniel Macek and Michael Patzer (many remember him from the Bellwether farce) happened to “work” for a bogus (and delinquent) South Dakota corporation registered by a con artist — a disbarred California attorney. And so on.

The most damning recent finding was a leaked presentation of the real force behind this lawsuit — a foreign “Anti-Piracy Management Company” (infamous and disgraced Guadraley in disguise). This presentation described the troll’s kitchen in all its cynical and inhumane efficiency. The revelation made it possible to connect many dots and explained many things we knew, but couldn’t put our finger on it.

Recent events

After the revelations, this lawsuit was on the collision course with the ground. On June 3, 2014 plaintiff’s attorney, Maureen VanderMay, asked the judge for a permission to be removed from the case:

Issues have arisen between Plaintiff’s representatives and counsel, the nature of which make it impossible for counsel to both continue with representation and comply with the governing rules of professional conduct.

We can only wish to learn the details of these “issues.”

Yesterday Mr. Lynch filed a motion to compel discovery, namely, to provide the relevant correspondence between the plaintiff and APMC/Guardaley. The defense claims that this correspondence is not privileged. And even if it was privileged, VanderMay waived this privilege by failing to timely object to the discovery request — she sent her objections too late. Read the motion about her attempts at weaseling out after being caught lying about the date of the service.

 

Declaration of Christopher Lynch and exhibits are must-read too: especially emails in the Ex. B:

 

David A. Lowe
David A. Lowe

These events did not reflect well on the troll, and Elf-Man, via attorney David A. Lowe, specially hired for the occasion, filed a motion to dismiss this case with prejudice; in other words, a disgraceful attempt to cut and run:

The dismissal of Plaintiff’s claim and its express statement that it will not enforce the asserted copyrights against Defendant divorces the Court of jurisdiction over Plaintiff’s counterclaims. No objection by Defendant can enable the Court to retain jurisdiction because there is no case or actual controversy and no present basis for subject matter jurisdiction. Consequently, the action in its entirety must be dismissed.

Yeah, right: I used that gun to rob you, now I tossed this gun and promise not to use it again. Therefore, no objection can enable the prosecutor to retain the charges. No more controversy here: am I free to go, officer?

 

The ball is now in the defense’s court: will or won’t Lamberson stipulate to the dismissal? The plaintiff cannot unilaterally walk away because the defendant both answered and counterclaimed. I’m pretty sure that the court won’t dismiss the case if the defense disagrees (the argument about the court suddenly losing the subject matter jurisdiction is hogwash). I won’t blame Mr. Lamberson if he decides to accept a large reward in exchange for closing the case: he and his attorney already did a titanic job of dismantling the international extortion machine.

Malibu Media
Michael Patzer
Colette Field, M. Keith Lipscomb,
Michael Patzer

So, what about our favorite troll: Keith Lipscomb/XArt/Malibu Media? After Morgan Pietz connected the dots in his mighty work in Maryland, it is clear that all the US trolls that have the German connection are essentially the tentacles of the same beast — Guardaley. Lipscomb continues (as recently as on 6/10/2014) referring to Michel Patzer as a witness in imaginary future trials, as if it was not shown that one of the two Elf-Man’s “experts,” a German national Mr. Patzer, was involved in a fraud:

At trial, Malibu will call Mr. Patzer to testify that the PCAPs and MySQL log files contain evidence that proves that an infringement was committed by a person using Defendant’s IP Address. Malibu will not use Mr. Fieser for this purpose because he will not be able to establish the chain of custody to the PCAP. To explain, Mr. Patzer, not Mr. Fieser, restores the PCAPs saved onto the WORM tape drives and makes forensically sound copies of them for use at trial. Thus, only Mr. Patzer can testify to the chain of custody.

So, while witnessing the grimace of fear on one of the Guardaley’s heads is heartwarming, I’m pretty sure that another one — Mr. Lipscomb — is not at ease these days either: the comeuppance is around the corner.

It is not a question whether we will witness a Prenda-like downfall of the German-connected trolls, the only questions are 1) when, and 2) how much harm upon the people the scammers will be able to inflict before they are shut down for good.

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

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

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

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


Magistrate Judge
Andrea Simonton

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

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

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

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

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

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

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

 

In other news from the Sunshine State

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

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

 

Update: case closed

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

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

It was a close call indeed:

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Next paragraph.

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

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

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

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

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

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

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

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

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

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

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

Why won’t they give up the PCAP files?

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

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

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

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

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

lol!

Soapbox time: a message to Doe defenders

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

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

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

A more serious closing thought

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

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

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

 


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

Roses are red, violets are blue, copyright trolls parasitize on the society because of the Kafkaesque statutory rates: $150,000 maximum for a single case of copyright infringement.


Michael Keith Lipscomb

While courts rarely play along with this insanity, trolls shamelessly use this travesty of law as a boogieman. Since abandoning the train wreck of mass Doe lawsuits, Keith “Dilly no more” Lipscomb found a new bonanza: because suing hundreds at once and demanding a nuisance amount for a potential lawsuit to go away became not so lucrative, Lipscomb’s crooked mind calculated that the same result can be achieved by suing individuals, yet demanding higher settlements while applying greater pressure to extract insane amounts from average Joes.

There is a lot of ways to increase the pressure, and Lipscomb’s moneymaking machinery uses many:

  • “Extended surveillance” — infamous “Exhibit C.” For those who don’t know, this exhibit lists a ton of files purportedly shared by a defendant, sometimes the filenames are really salacious. These files have nothing to do with plaintiff’s copyrights. While Lipscomb went to great lengths defending this sleazy practice by stating that such lists prove defendants’ guilt, two courts disagreed, finding that

    […] the intent [of Exhibit C] was to harass and intimidate defendants into early settlements by use of the salacious nature of others’ materials, rather than the merit of its own copyright claims.

  • “Exculpatory evidence request”: a form that a new defendant is offered to fill, providing a load of information about himself and maybe ratting out his roommates or family members. Many people fell for this bluff and supplied information to the sharks on the platter — information that can, and most certainly will be used against the duped laymen who filled out that form. This document received much less coverage, but one of the judges (Rudolph Randa, WIED) explicitly called out this predatory tactic:

    With regard to “assistance,” Malibu Media argues that in its experience, the infringer is almost always the subscriber, but if the Doe defendant is innocent, then he or she will usually know the actual infringer. To this end, the complaint attaches a form labeled “Exculpatory Evidence Request,” which can be used in conjunction with Exhibit C to help identify the infringing party. This is simply an additional form of coercion.

  • Another boogieman that has not been covered at all is “FBI Memo,” a document ostensibly meant to support ex-parte motion for discovery, yet in reality aimed at terrifying defendants. No reasonable human being would even suggest that this grand irrelevancy serves any valid purpose (unless a depressed misanthrope chimes in arguing that extorting teens and senior citizens is a sensible goal).

While Lipscomb and his gang use all these (and more) hand-twisting tactics, the main avenue to apply pressure remains unconstitutionally high statutory rates. But here is the catch: in a recent couple of years copyright trolls managed to devalue this fear factor: with rare exceptions (mainly default judgments), judges tend to be reasonable and issue judgments close to the low end of the range, which is $750 per work.

Per work? Per work! “Eureka!” thought Lipscomb and cut the ties with his previous plaintiffs, including terrorist Kevin Beechum (K-Beech), sticking with XArt/Malibu Media, whose conveyer produces short (6-10 minutes) flicks depicting 18-20 old children’s genitals. It is inevitable that these short clips would be bundled together and seeded as one torrent. And since copyright law does not distinguish between a 6-minute hardcore porn flick and “Seven Samurai,” a potential maximum fine for sharing such a bundle is $150,000 times the number of episodes.

So, do Lipscomb and his goons really demand this bizarre amount? The answer is yes. Look at the Malibu Media v. John Doe (INSD 13-cv-01525) complaint (all the emphasis in this post is mine):

Award Plaintiff statutory damages in the amount of $150,000 per infringed Work pursuant to 17 U.S.C. § 504-(a) and (c);

…and the exhibit that lists the clips in the bundle:

Total Malibu Media, LLC Copyrights Infringed: 49

If you are not convinced, look what Lipscomb (via his marionette Mary K. Schulz) wrote in a response to request to admissions in another X-Art shakedown case:

10. Admit that you are seeking a judgment, in this case, in the amount of $3.6 million dollars.

Response to Request No. 10: Plaintiff admits that the maximum amount of statutory damages which could be awarded is $150,000 per infringed work. Plaintiff has not yet ascertained the specific amount it will ask the jury to award. However, in the Bellwether trial, Judge Baylson found that $2250 per work was appropriate unless the Defendant commits perjury or attempted to commit fraud. Generally, Plaintiff agrees.

So, in the abovementioned Indiana case, the crooks demand $7,350,000 ($150,000 • 49) from an average citizen, who, unlike the jaded, soulless pornographer, likely doesn’t accumulate even a fraction of this amount over his lifespan. This pornographer whines to the judge about how piracy almost turned poor small business owners into panhandlers, yet just in a week from that mock trial she closes on a $16,000,000 house, which has an ocean-facing swimming pool filled with tears of thousands, whose lives had been turned upside down.

But that’s not all.

Wrongly accused. Once again

In this case, despite all the declared diligence in identifying the actual infringer, Lipscomb/Nicoletti time and again tried to shake down a wrong person. I already mentioned suing an 80 year old, but there are many more: a disturbing story of an assault on a clearly innocent immigrant, the refusals to consider innocents’ offers to examine their hard drives… I can go on and on. I also have many stories that I can’t publicize because innocents settled to avoid damage to families and careers, and making their letters full of tears and helpless anger public would put them in the crosshairs of the NDA breach. I hope to tell those stories on the witness stand when criminal RICO charges will be brought against Keith Lipscomb, Mary Schulz, Paul Nicoletti, Christopher Fiore, Jason Kotzker, Patrick Cerillo, Jon Hoppe, Colette and Brigham Field.

So, look at the email sent by Paul Nicoletti to a defendant’s attorney. In this email the troll casually admitted that the initial Doe was not the one who was supposed to receive all the harassment:

 

I planned to analyze this case in depth, but I’m exhausted. I urge you to read an excellent motion to dismiss for the failure to state a claim: Paul Overhauser attacked the extortion enterprise from an interesting angle — alleging that the trolls dance around direct claims of infringement, mixing up technical terms — all to avoid Rule 11(b) sanctions.

Plaintiff’s counsel is walking a thin line to avoid a possible Rule 11 violation. He is careful not to allege copying of any movies, because there is no such evidence. Instead, he carefully obfuscates the facts surrounding who is doing what, and exactly what is being copied. While Plaintiff’s counsel might be lauded for not over-pleading, his restraint comes at the expense the Complaint being subject to dismissal for failure to state a claim. If Plaintiff wishes to accuse Doe of copying something that is copyrighted by Plaintiff, it should do so in a way that puts its counsel at risk for a Rule 11 violation if he has not performed a reasonable pre-suit investigation.

Here, the only thing alleged to have been copied are “one or more bits” of uncopyrighted “hash files” that “correlate to” movie files. That alleged copying was incomplete, and did not result in a copy of any movie copyrighted by Plaintiff. Moreover, in any event, the copying was done by Plaintiff’s investigator, not Defendant. The only facts alleged are that Defendant had an Internet account, that some computer associated with that Internet account held some uncopyrighted “hash files”, and that Plaintiff’s investigator copied “one or more bits” of one of those hash files. These allegations do not plausibly allege copyright infringement by Defendant, so the Complaint should be dismissed for failure to state a claim.

On 12/23/2013 Plaintiff replied in the familiar Lipscomb’s style: he slithers around facts, repeating old BS in circles, weaving words to prove unprovable, and not addressing the lint of Overhauser’s arguments.

On 1/2/2014 Overhauser filed a great reply saying just that: sophism and old crap don’t constitute a good argument.

A big if

To conclude on a brighter note, I want you to enjoy a sharp Paul Overhauser’s Reply in Support of Motion:

 

Happy New Year!

Posted: December 31, 2013 by SJD in Housekeeping
Tags: , , ,
It was a rollercoaster year.

Exactly one year ago Prenda was at the apogee of its Chutzpah. Trying to remove Judge Wright from the case with a forged copyright assignment was one of the major mistakes made by the arrogant attorneys John Steele and Paul Hansmeier. We know what happened. Stupendous Wright’s Star Trek order paved the way for many other silver hummers going upon Prenda’s head.

The farcical defamation suit meant to silence us, backfired on Prenda, and the likelihood of a new round of sanctions is great.

I don’t say that our community was central in crashing Prenda, yet we did our humble part diligently and we made a difference. I’m not a Don Quixote type and wouldn’t keep supporting the cause if I did not see a substantial impact.

Anyway, Prenda is done, and if I continue writing about it, it will be merely for the sake of entertainment.

In 2014 we will concentrate on other parasites that continue raping productive population. Keith “I’m not a troll” Lipscomb’s shakedown enterprise will get our special attention. Fortunately, the media started talking about X-Art, especially after two sanction orders, and more intellectually and ethically superior attorneys are bringing the fight to the next level. Just today I saw a heartwarming tweet:

 

The very fact that X-Art sabotages any discovery effort is telling: they have a lot of dirty laundry to hide — from German “experts” to ransom revenue sharing and employment and 2257 records. I hope in 2014 the crooks will be compelled by courts to reveal their shady dealings.

The gloves are off: for friends to make handshakes, for trolls — to slap.

Happy New Year!

This is not some dramatic news, but I wanted to write about it anyway: Christmas Eve demands a light and cheerful mood, so I want to share a recent order in Malibu Media LLC v. Farler (INND 13-cv-00071) that made me chuckle.

Lipscomb / Nicoletti / Malibu Media / X-Art trolls continue to game the judicial system boldly, pretending that thousands of their extortion lawsuits are about justice, recouping of damages, and deterring piracy. Reindeershit. It’s all about squeezing money from low and middle class, while purported victims — pornographers — are making obscene amounts of money by filming yesterday’s children having sex.

These lawsuits were never meant to see the courtroom: even a fourth grader, who has just started mastering math, can easily prove that if trolls were serious about litigation, Lipscomb and his local puppets would need to clone themselves dozens of times to handle the load and not to run afoul of the Rules of Professional Conduct:

A lawyer’s workload must be controlled so that each matter can be handled competently.


Magistrate Judge
Christopher Nuechterlein

Some judges see the root of the problem. While they cannot rule against the law, no matter how unfair that law is, they have a lot of leverage to call out trolls’ scummy strategies. Like this: Indiana Magistrate Christopher A. Nuechterlein used some harsh words to deny Paul Nicoletti’s motion to appear telephonically at the January 17 hearing in South Bend, Indiana:

The court is aware that Plaintiff’s counsel is from out of state, Bloomfield Hills, Michigan, but the court also assumes that Plaintiff’s counsel is and was aware when this action was filed that this court sits in South Bend, Indiana. As a consequence, Plaintiff’s counsel must also have been aware that there may be occasions when counsel must personally appear in South Bend. This is one such occasion.

We need more orders like this, let the trolls run like rats in the wheel to our amusement.

 

Merry Christmas everyone!

 

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

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

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

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

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

Judge Frederick Kapala
US District Judge
Frederick Kapala

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

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

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

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

 

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

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

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

It. Won’t. Fly.

Update

10/16/2013

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

 

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

 


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

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

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

Abraham Lincoln chastising his law partner.

 

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

 

Nicoletti
Copyright troll Paul Nicoletti

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

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

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

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

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

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

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

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

A: I have not, your Honor.

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

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

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

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

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

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

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

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

 

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

 

 

Update (and retraction)

06/16/2013

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

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

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