Posts Tagged ‘x-art’

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.

 

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.


Federal Judge
William M. Conley

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

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

As a result,

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

 

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

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

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

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

A well deserved reversal of fortune after the Bellwether fiasco.

Media Coverage

Colette Pelissier (Filed), a co-owner of a hardcore pornography site X-Art, is busy filing hogwash affidavits in a barrage of new Malibu Media shakedown cases in Eastern Wisconsin:

 

Her lawyer Keith Lipscomb, the mastermind of an unprecedented assault on the productive population, never fails to induce stomach spasms (if you don’t know the whole story, you should read it):

http://fightcopyrighttrolls.files.wordpress.com/2013/07/lipscomb_bs.png?w=614

 

Make your own conclusions.

Lipscomb’s insistence that he is not a copyright troll, his efforts to distinguish his shakedown outfit from the Prenda gang, becomes more and more laughable. Remember the bile-infused Prenda’s opposition to EFF’s brief last year, which contained nothing but insults? Yesterday in Wisconsin Keith Lipscomb (via his local Mary K. Schulz) filed an opposition to EFF’s motion to leave to file a brief, prompting an acute deja vu.

We wrote about this case (actually 11 cases consolidated into a single one): Judge Stephen Crocker smelled a troll, halted the proceedings, and issued an order to show cause why Malibu Media/X-Art/Lipscomb shouldn’t be sanctioned for supplementing their complaints with a malicious exhibit (infamous “Exhibit C” that lists unrelated infringements that defendants purportedly committed). Malibu/Lipscomb responded to the order on 6/26/2013 (of course bragging about the Bellwether Pyrrhic victory). Shortly after, EFF (via Erin Russell) asked for leave to file an amicus curiae brief:

In the instant cases, defendants are in danger of being coerced into unjust settlements by the threat of public embarrassment before having a reasonable opportunity to be heard. In fact, the conduct that led to the Court’s Order to Show Cause – attaching to complaints a list of highly embarrassing pornographic movie titles for which Malibu is not claiming copyright infringement – creates a strong incentive for defendants to avoid appearing before this Court. Raising defenses, no matter their merit, would risk a defendant’s identity being revealed and publicly associated with the scandalous titles listed in “Exhibit C.” Given the circumstances, the defendants are inadequately represented at this stage, though their rights are very much at stake.

EFF will assist the Court by providing a response to Malibu’s briefing, including placing Malibu’s conduct in the context of judicial responses to the broader phenomenon of BitTorrent litigation and providing authority supporting the Court’s contention that Malibu’s conduct has violated Rule 11. In order to respond thoroughly to Malibu’s 30 pages of argument and numerous declarations, EFF respectfully requests that it be allowed to file its brief on July 15, 2013, or on such other date as the Court orders.

Yesterday’s Prenda’s Lipscomb’s opposition to this request is very weak in my opinion, and in addition to usual attacks on EFF’s “pro-piracy agenda,” is largely based on a bizarre argument that EFF cannot provide any valuable input because…

…no one at the EFF is a trained psychologist who has interviewed Plaintiff or its counsel for the purpose of forming an opinion about the purpose behind attaching Exhibit C.

Seriously?

The purpose of a particular troll’s sleaze was never discovered using a psychiatrist. Any court makes its determinations based on facts, arguments by the parties, and input from non-parties that have experience in a particular area. It is ridiculous to state that EFF has no expertise in this type of “litigation,” and it is an insult to the judge’s intelligence to assume that he either needs a mind-reader or should rely solely on the plaintiff to make the right conclusion, especially if that plaintiff has the audacity to claim the monopoly on truth:

…since Plaintiff and its counsel told the whole truth about its purpose, the EFF simply will not be able to contradict any of the material statements in the declarations Plaintiff submitted.

Ironically, while insisting that EFF would not know trolls’ intentions because they are not psychiatrists, Lipscomb & Co know exactly what EFF’s brief will and will not be about:

The EFF cannot assist the Court in providing competent testimony about Plaintiff’s purpose for attaching Exhibit C. Instead, all the EFF could possibly do is provide anecdotal ad hominem attacks and inadmissible speculation about the purpose of Exhibit C. This would merely district the Court from its task and unnecessarily burden Plaintiff who would have to respond to irrelevant and inadmissible red herrings.

 

In conclusion, I’d like to draw your attention to a document that was recently filed by Morgan Pietz in Michigan (Malibu Media LLC v. John Doe, MIED 13-cv-1220). This is a declaration that details the communication between Pietz and Lipscomb’s Shakedown Officer, Elizabeth Jones. Although the dialogues took place a year ago, the methods are hardly changed in principle. You will see the proto phase of what would become “Exhibit C” — namely, a tactic of initially accusing a victim of a single download, but when he contacts the troll, twisting his arms using additional “evidence.” Do we really need a psychiatrist to understand the dark, rotten souls of Lipscomb and his goons? I wouldn’t peek into that darkness voluntarily, simply because I value and want to preserve my faith in humanity.