A couple of months ago I wrote
about an interesting development in Michigan (Malibu Media v. Gerald Shekoski
, MIED 13-cv-12217
). When it came to discovery, the defendant’s attorneys, Derek W. Wilczynski
and Lincoln G. Herweyer
, were reasonably distrustful to the prospect of porn trolls rampaging through the defendant’s hard drive, accessing sensitive information and other files that have nothing to do with the plaintiff’s pornography.
Defendant would have to essentially trust [Malibu]. Yet, pornographers with an industry-sized litigation practice of coercing settlements from blameless individuals do not instill the confidence necessary to such trust.
Mr. Wilczynski wanted to engage a local independent expert to avoid a fishing expedition that would result in blackmail based on findings of possible unrelated wrongdoings.
As we will shortly see, the defense’s fears were all but unfounded.
While Judge Victoria Roberts didn’t agree to an independent expertise, she was apparently wary of the defense’s concerns and wrote a compromise order. Although she ordered that the hard drive examination would still be performed by Malibu’s own expert Patrick Paige, she set very strict safeguards:
If the examination does not reveal evidence of the copyright infringement alleged in the complaint, and if there is no evidence that infringing files have been deleted, Malibu Media will dismiss its claims against the Defendant. Malibu Media must report the results of the forensic examination immediately to counsel for the Defendant.
The order was issued on 7/21/2014, and it seems that the drive examination was performed shortly after that. Apparently, neither XArt’s smut nor evidence of spoliation was found. Nonetheless, in violation of a clear language of the order, plaintiff’s lawyers not only didn’t dismiss the case, but were concealing the results from the defense for more than a month:
On September 11, 2014, Plaintiff’s counsel, by omission, made Defendant’s counsel aware that the forensic examination of Defendant’s hard drive had not revealed evidence of the copyright infringement alleged in the complaint, and had not revealed any evidence that the infringing files had been deleted. However, instead of directly confessing the same, Plaintiff’s counsel stated that Plaintiff’s expert had found evidence of unrelated possible copyright infringement of a completely different than that at issue in this case.
Here is the defendant’s motion (for permission to file motion to dismiss and/or to dismiss with liability for attorneys’ fees):
As we read through, we can see that our trolls started a nauseous blackmail campaign despite the absence of any evidence that XArt’s smut was ever located on the defendant’s hard drive. Here is Nicoletti’s email threatening the defendant with sanctions, offering a walk-away with unacceptable terms:
Porn troll Paul Nicoletti
What did the trolls try to leverage? Apparently the fact that the defendant’s daughter used to share music using popular free peer-to-peer software LimeWire, which took place… 5 years ago, when she was a minor. In addition, Nicoletti/Lipscomb claim that the defendant lied when answering an interrogatory about his knowledge of this fact.
First of all, Mr. Nicoletti, let me educate you, an ostensive IP attorney: the statute of limitation for copyright infringement is three years.
Secondly, as for the false statements (of not knowing that a file-sharing software was installed), the threats are beyond douchy as they suggest that the defendant should have actively policed his daughter’s computer usage.
Thirdly, the fact of buying a new computer as an evidence of wrongdoing is not even a stretch, it’s a fiction.
And finally, I challenge you to find a then-teen who either didn’t use LimeWire or didn’t know someone who did: not only it was extremely popular, it was perceived legal by the majority of its users before it was shut down by the music industry in 2010. We don’t have to dig too deep to find a good example of an innocent infringement of this sort: plaintiff’s co-owner Colette Field publicly acknowledged pirating music using a similar peer-to-peer system Napster in the past.
You know when I was 19 years old I used to download from Napster and I didn’t even know it was wrong. And then I saw some lady getting sued for $30k and I realized what I was doing was illegal and I stopped. I joined itunes, I pay for my music, I pay for Sirius. Why should people not pay for what we spend most of our time and money making. I want to get out the message that I learned about Napster, can you understand that? Thank you for reading. ~ Colette from X-Art
So, why not to blackmail your own plaintiff, Mr. Lipscomb? Obviously, she is quite capable of paying — despite her laments about evil pirates destroying her business, XArt reportedly declared more than five million dollar revenue on its 2013 tax return.
Where are you, Mr.
Basically, Lipscomb/Nicoletti/Paige violated every paragraph of the 7/21 court order.
The judge was not happy, and after a short telephone conference on 9/16/2014, she gave our trolls one more chance (or a rope?) to do what the previous order unambiguously said:
Patrick Paige must supplement his affidavit by September 23, 2014. The affidavit must answer the questions: (1) Did Mr. Paige find evidence of copyright infringement as alleged in the Complaint? (2) Did Mr. Paige find evidence of deletion of infringing files?
On 9/23 however, Malibu filed a motion for extension of time for one day, claiming that
2. Because of a clerical calendaring error, Plaintiff did not notice the deadline until after business hours, which made it impossible to secure the supplement from Patrick Paige.
3. As such, Plaintiff requests one (1) additional day for Patrick Paige to supplement his affidavit.
Well, no matter how phony this excuse sounded, the judge granted a one-day extension, as asked: no more, no less. Since then — silence. At the time of the writing, i.e. four days after the extended deadline, no affidavit can be found on the docket. I bet that the crafty young lawyers at the 2 South Biscayne Drive are still restlessly brainstorming a graceful exit from this Prenda-like situation.
I can’t help drawing a parallel with the games Prenda played in the Minnesota and California courts when the purported boss of bogus corporations Mark Lutz was ordered but failed to appear in judges’ courtrooms.
This is not the first time when Lipscomb & Co threatens an obviously innocent person. One of the most egregious examples is Malibu Media v. Pelizzo, a case that is currently on appeal.
Given the Kafkaesque disconnect between actual and statutory damages in the Copyright Law and the general hostility of the judicial process to an individual, it is quite disgusting when trolls twist defendants’ hands even based on more or less plausible proof of wrongdoing. It is way more troublesome when porn trolls behave as Mafia and attempt to extort money from people who haven’t wronged the plaintiff in any way.
Today we finally heard from the court. Judge Roberts issued an order granting defense’s request to file a motion to dismiss and for fees (reminder: the judge put a moratorium on motions, and the motion featured above was technically a request to leave to file a motion to dismiss). She also set the reply-response schedule:
1. Plaintiff’s Motion to Dismiss must be filed by: 10/16/14
2. Defendant’s Response Brief must be filed by: 11/10/14
3. Plaintiff’s Reply Brief must be filed by: 11/20/14
The absence of Paige’s supplement on the docket is puzzling: I guess this issue was discussed during the 10/2 phone conference and the trolls seemingly got away with breaking the judge’s order. This time.
Half a year has passed since the last filing, and today the judge finally had her say.
It seems to me that directly violating judge’s order and blackmailing the defendant using patently inadmissible, illegally collected evidence is an OK conduct. Today Judge Roberts granted Malibu’s motion to dismiss without prejudice and refused to discuss attorneys’ fees based on the recent motions.
In his opposition to Malibu’s motion to dismiss, the defendant clearly explained why a dismissal without prejudice is a travesty:
Plaintiff wants the dismissal to be “without prejudice” so that Defendant will not be deemed a “prevailing party” who would be entitled to recover costs and attorneys’ fees pursuant to 17 U.S.C. § 505. For the reasons set forth with more particularity in the accompanying brief, Defendant asks that this Court dismiss this action “with prejudice.”
In other words, the troll lured an innocent man to an expensive restaurant, stuffed his troll stomach and (with judge’s blessing) escaped via the backdoor, leaving the defendant with an unpaid bill.
Recent developments in Malibu Media v. Roldan and the appellate decision in Malibu Media v. Pelizzo are extremely alarming. If filing shakedown lawsuits has only upside for the troll, and no downside whatsoever, expect the current judicial plague only to worsen.