Posts Tagged ‘x-art’

On Friday 4/24/2014, ILND Judge Robert M. Dow Jr granted the plaintiff’s motion for default judgement¹ in Malibu Media v. Jack Funderburg (ILND 13-cv-02614). While default judgments are (sadly) not really big news these days (such outcomes are an integral part of XArt’s secondary revenue stream), this order stood out for a couple of reasons.

The good
Robert M. Dow Jr.
US Federal Judge
Robert M. Dow Jr.

In addition to the attorney fees ($2,525), the judge awarded the minimum statutory damages possible: $750 per work ($9,000 total), despite the fact that the plaintiff asked for three times more. The explanation of why the plaintiff doesn’t deserve more is heartwarming (citations omitted, emphasis is mine):

Plaintiff requests $27,000 in statutory damages, which amounts to $2,250 per film. It argues that this request is reasonable, as Defendant’s alleged willful infringement permits the Court to impose statutory damages as great as $150,000. See 17 U.S.C. § 504(c)(2). In addressing Plaintiff’s request, the Court notes growing judicial concern with “the rise of so called ‘copyright trolls’ in the adult film industry, meaning copyright holders who seek copyright infringement damages not to be made whole, but rather as a primary or secondary revenue stream and file mass lawsuits against anonymous Doe defendants with the hopes of coercing settlements.” As an actual producer of pornographic films, Malibu Media is unlikely a non-producing troll that purchases the right to bring lawsuits against alleged infringers. As an enforcer of pornographic copyrights, however, Plaintiff is among the entities that courts are concerned may be “inappropriately using the judicial system to extract quick and quiet settlements from possibly innocent defendants paying only to avoid embarrassment.” The Court is aware of Plaintiff’s extensive history of litigation in the last three years alone. Without drawing any conclusions as to this Plaintiff’s business model, the Court considers the concerns that other courts have expressed in evaluating requests to enter large damage awards with no relationship to actual damages sustained by a plaintiff. To the extent that these concerns reflect industry-wide trends, they counsel against awards that are triple the statutory minimum, as a default judgment imposing significant statutory damages may overcompensate plaintiffs in these circumstances.

The first good thing is that the judge clearly articulated a concern regarding Malibu Media’s abuse of the court system — the abuse that another judge called much less politely: “essentially an extortion scheme.” Judge Dow specifically called Malibu Media / XArt a “troll” (albeit not a “non-producing troll”), a title Lipscomb & Co and their “clients” so comically claim doesn’t apply to them.

The second good thing is that given his concern about “overcompensation,” the judge seemingly remembers that the rationale behind the statutory damages is to approximate real losses (when it is difficult to assess them) — the fact that many judges forget about.

The bad

There are two bad things I want to mention, and both are not related to this particular ruling, but to every default judgement in Malibu Media cases.

The first is the default judgement per se. Judgements like this make me sad because defaults are easily avoidable. While in this particular case the judgement is approximately equal to a typical Malibu’s ransom demand, playing this lottery is dangerous for defendants: default judgements around the country lack consistency, and there were cases when some judges awarded more than $100,000.

The second bad is that Lipscomb found a bonanza in the fact that for the purpose of the statutory award the law doesn’t differentiate between a multi-million full-budget movie and a cheap, plotless porno flick illegally filmed at the pornographers’ home in a course of hours. Thus, the judge couldn’t award less even if he wanted. This loophole guarantees that the shakedown business stays profitable no matter what.

The ugly

Now, the worst part of this order. For some unexplainable reason Judge Dow decided to resurrect the zombie of contributory infringement (citations omitted, emphasis is mine):

Lastly, Plaintiff also asks the Court to (a) permanently enjoin Defendant from directly or contributorily infringing Plaintiff’s copyrights under federal or state law […]

[…]

Plaintiff also states a plausible claim for contributory copyright infringement. “A defendant is liable for contributory copyright infringement when it with knowledge of the infringing activity, induces, causes, or materially contributes to the infringing conduct of another.” Plaintiff alleges that Defendant contributed to the infringing conduct of other BitTorrent users by participating in the BitTorrent swarm—a group of users uploading and downloading bits from each other simultaneously. Plaintiff contends that Defendant’s knowledge can be inferred from his use of the platform, as it is frequently used to share unlicensed content, and the fact that the film was free. Based on these allegations, Plaintiff alleges a plausible claim of contributory copyright infringement.

The eye-popping fact here is that the plaintiff never pled contributory infringement (here is the amended complaint).

The only explanation I can think about is that Judge Dow’s clerk, while preparing this order, dropped all his papers, and the pages from different complaints by different plaintiffs ended up shuffled.

Interestingly (while not surprisingly), the blog LiveTrollLive, supposedly run by Libscomb’s associate, couldn’t miss this opportunity:

Once again the courts continue to extend liability for BitTorrent infringement to the account holders and subscribers. The lesson: If you pay the bill, make sure no one is using BitTorrent.

[…]

The Judge appears to have brought an alternative finding of contributory infringement to this opinion on their own based on the evidence.

I have no idea what evidence the author is talking about, and the card sharping here is astonishing: it’s an impossible stretch from “contributing” by actively participating in a swarm as the judge said (essentially directly infringing) to an Orwellian notion that those who pay the bill have a duty toward porn purveyors and may be held liable.

I understand that Lipscomb would be happy to be able to shake down account holders without a need to prove anything… However, I think that this strange paragraph in the judge’s order is an isolated hiccup, most likely an error, and not a trend: any defense attorney will be able to kill the contributory infringement zombie for good in adversarial proceedings… which brings us to the same conclusion over and over again:

If a lawsuit is filed against you, ignoring it won’t make it go away, and you may end up dealing with collection agencies, which have much sharper teeth than our petty extortionists.

 


¹ This motion was submitted by Lipscomb’s local Mary K. Schulz, and the signature block indicated a non-existent “Schulz Law, P.C.,” a law firm involuntarily dissolved half a year prior to this filing. That’s OK because the law is obviously written only for defendants while trolls can lie to the court and get away with it.

As a Malibu Media docket grows longer, the probability of accusing defendant of evidence spoliation or perjury approaches 1.

Lipscomb’s Law

 

Copyright trolls “litigate” by what in boxing is called “below the belt.” It’s an undisputed fact. Abusing antiquated local laws, soliciting laypeople to incriminate themselves by filling “exculpatory evidence forms,” filing inadmissible “third party infringements” lists to embarrass defendants, asking eye-popping irrelevant questions in interrogatories, ambushing neighbors, making defendants’ names public in violation of protective orders. The list can go on and on. In their servitude to Mammon, shakedown artists don’t respect any ethical (and often legal) barriers. Once in a while we witness a sleaze never seen before.

Jacqueline M. James
Porn troll Jacquline M. James

This time Lipscomb’s local representative in New York, Jacqueline M. James, “on behalf” of a serial filer of shakedown lawsuits, purveyor of illegally filmed “barely legal” pornography Malibu Media/ XArt, did something so overreaching that I think that the involvement of civil liberty groups such as EFF is warranted.

I don’t know if it was Ms. James’s idea or something cooked in the Miami kitchen, but a few weeks ago she started faxing and mailing proposed orders to the NYSD courts where more than a hundred of Malibu Media cases were pending.

The orders in question directed putative defendants to preserve evidence. Some law clerks and judges rightfully ignored such blatant shortcut attempts, but other lazy ones simply signed them without even reading (otherwise I can’t explain how a legal professional can possibly miss the last paragraph — I’ll get to it shortly).

To say that the language of these orders is grossly overreaching is an understatement. First of all, such orders are not necessary because any defendant, once aware of a lawsuit against him or her, already has a duty to preserve all the relevant evidence. So one of the apparent goals of smuggling this travesty was inducing FUD on the Does, innocent or not, strong-arming them to settle out-of-court.

Historically courts were more or less lenient to individual parties who continued using their computers during the course of litigation. Only specific, deliberate spoliation was frowned upon. For example, recently in Malibu Media v. Harrison (INSD 12-cv-117), Judge Dinsmore ruled that because the defendant destroyed his hard drive without intent to conceal his wrongdoing, he didn’t deserve sanctions:

[…] the Court concludes that Defendant did not destroy the hard drive in bad faith. No direct testimony establishes that Defendant did so, and the circumstances of the destruction as outlined above do no warrant an inference that Defendant destroyed the hard drive for the purpose of hiding adverse information. As such, Plaintiff has not carried its burden to prove bad faith destruction of evidence, and Plaintiff’s motion for sanctions is DENIED.

In any case, it is a common sense that good faith in preserving the data doesn’t require a Doe to stop using his computers, phones and other electronic devices. It would be simply unthinkable in this day and age. And the quote above indicates that even if a spoliation is alleged, it’s the plaintiff who bears the burden of proof.

Yet read one of the identical preservation orders smuggled by James. According to it, a Doe, innocent or not, should either pay thousands for hiring an imaging expert (or even tens of thousands if he/she has many devices/hard drives — more than a typical Malibu’s settlement offer!), or such an innocuous operation as deleting a browser cookie might result in sanctions.

 

But that’s not all. The most egregious is the last paragraph:

Defendant is also ordered to provide Plaintiff of a complete inventory of all Hard Drives and third party cloud storage services in Defendant’s possession, custody, or control.

This is nothing else but a discovery order issued prior to the Rule 26(f) conference. And that runs afoul of the Rule 26(d):

(d) TIMING AND SEQUENCE OF DISCOVERY.
    (1) Timing. A party may not seek discovery from any source before the parties have conferred as required by Rule 26(f), except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B), or when authorized by these rules, by stipulation, or by court order.
    (2) Sequence. Unless, on motion, the court orders otherwise for the parties’ and witnesses’ convenience and in the interests of justice:
            (A) methods of discovery may be used in any sequence; and
            (B) discovery by one party does not require any other party to delay its discovery.

Both conferring requirement and, more importantly, the motion requirement were ignored. This is mega overreaching. Arguably, the early discovery order exempts Malibu Media from the conferring requirement, but it is a stretch. In any case, such an Order has to be motioned: an answer has to have been filed (issue joined), so a Doe Defender can oppose such a motion for interrogatories.

In any case, this is inherently unfair. The order was issued when the Doe didn’t have a notice about a lawsuit filed against him yet, so he could violate it before even knowing it. Franz Kafka is rolling in his grave.

It is fair to note that at least one judge (or his clerk) paid attention to what was submitted via a back door: Judge Karas removed the offending paragraph before signing:

 

At this moment I don’t have time and energy to enumerate all the cases, in which this poisonous order was injected, maybe I will post an update tomorrow.

Shame to the judges and law clerks for signing this overreach, brazen orders. Shame… well, I almost automatically wrote “…to Lipscomb and James,” but stopped short: it would assume these guys have a quantum of dignity. They don’t.

Thanks to Raul and the community for contributing ideas/research/explanations for this post.

Malibu Media v. John Doe (OHSD 14-cv-00493) is one of the cases I list on the “Cases to watch” page. A mere fact that the defendant is represented by Jason Sweet means that it is worth attentively watching how this case progresses.

I wrote about this lawsuit half a year ago. That post was mainly about the defendant’s argument that the plaintiff didn’t need to know the Doe’s identity because his/her attorney would happily accept the service. The motion exchange revealed that Malibu’s local Yousef Faroniya is merely a stooge who files shakedown lawsuits and forwards email to/from the troll center in Miami. Not surprisingly, he avoids talking to the opposite party’s attorneys at all costs; hence I named the post “Copyright troll Yousef Faroniya and his telephonophobia.”

Normally I would edit the post to append a new information, but because at least three major events happened since my last update, a new article is appropriate. These events are:

  • the judge’s order denying the defendant’s motion to quash, and striking parts of the plaintiff’s complaint;
  • the defense’s motion to dismiss for failure to timely serve;
  • the plaintiff’s violation of the court’s order and the resulting motion to show cause.

 

The judge denies the motion to quash yet expresses concerns
Timothy Black
US Federal Judge
Timothy Black

Unfortunately, Judge Timothy Black was not persuaded by Sweet’s argument and on 1/21/2015 ruled that the plaintiff is entitled to know the defendant’s identity. Nonetheless, while the judge didn’t explicitly order not to identify the defendant publicly at that time, the tone of the order suggested the assumption that the defendant would proceed pseudonymously.

Denying the motion to quash didn’t mean that Judge Black was happy with the plaintiff’s conduct. The following paragraphs from the complaint piqued his attention:

25. IPP’s software also logged Defendant’s IP address being used to distribute third party files through BitTorrent. This evidence indicates that Defendant engaged in BitTorrent transactions associated with 2732 files between 06/23/2013 and 05/13/2014. Collectively, this evidence is referred as the “Additional Evidence”.

26. Plaintiff has the Additional Evidence on a document and can produce it.

27. The Additional Evidence demonstrates that Defendant is a persistent BitTorrent user.

28. Many of the titles to the third party works may also be relevant to proving Defendant is the infringer because they correlate to the Defendant’s hobbies, profession, or other interests.

Those who follow these cases remember that Malibu Media and its attorney Mary K. Schulz was sanctioned twice in Wisconsin for filing an infamous irrelevant and scandalous “exhibit C” — the list of filenames, many of which are embarrassing, purportedly shared from the defendant’s IP address. The judge thought that the above paragraphs from the complaint are nothing but a concealed “Exhibit C,” so he sua sponte ordered to strike this travesty:

Finally, the Court sua sponte raises what appears to be a remnant of one of Plaintiff’s particularly controversial litigation practices. Plaintiff’s complaint makes the seemingly off-hand allegation that IPP International UG logged Defendant’s IP address distributing 2,732 third-party files through BitTorrent. Plaintiff euphemistically describes this as “additional evidence” that Defendant is a persistent BitTorrent user and that “[m]any of the titles to the third party works may also be relevant to proving Defendant is the infringer because they correlate to the Defendant’s hobbies, profession, or other interests.” Plaintiff advises that it has this “additional evidence” on a separate document and gratuitously offers to produce it upon request.

Plaintiff presumably did not attach this document to its complaint because its lawyers have been sanctioned for the same. This attachment, the sequentially numbered Exhibit C, “consistently includes far more disturbing lewd, unusual and unredacted titles of pornographic films allegedly downloaded by the defendant than those belonging to plaintiff.” Courts concluded that the sole purpose of this exhibit 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.”

Although Plaintiff did not attach Exhibit C to its complaint, references to its existence and thinly-veiled threats of its production demonstrate that “these cases are fraught with circumstances that could embarrass the putative defendant should they become public and strongly influence his or her decision to settle even a meritless suit just to make the case go away before being publicly associated with their client’s film.” The alleged infringement of third-party copyrights is “immaterial to the allegations in the complaint.” Further, “the exhibit is merely a list of filenames, and it likely constitutes ‘immaterial, impertinent, or scandalous matter’ that should be stricken from the complaint.”

[…]

Accordingly, the Court STRIKES paragraphs 25-28 from the complaint.

Service games and motion to dismiss for failure to serve

The judge’s order also gave the plaintiff additional 38 days to serve the defendant.

The troll got a hold on the defendant’s identity on 2/2/2015. A reasonable bystander would think that Malibu would rush to serve, right? Wrong. The defendant was not served by the 2/28/2015 deadline. Why? Maybe because Lipscomb’s back office is not that good with the logistics, maybe because the trolls are spoiled by the majority of gullible judges who rubberstamp extensions without asking questions, or maybe because Lipscomb was scared of the prospect of the defendant answering the complaint, which would close the backdoor of the voluntary dismissal cut-and-run.

Moreover, after an email sent to the defense attorney strategically on Friday night before the deadline, the troll had an audacity to ask the judge for another extension.

On 3/11/2015 Jason Sweet filed a motion to dismiss for failure to effectuate the service:

 

Note that this motion lists seven other Malibu cases from this district in which the deadlines to serve passed.

What judge immediately did is encouraging: not only did he sua sponte expedite the briefing of this motion, setting a tight schedule (troll’s memorandum contra due by 3/18/2015; defense’s reply memorandum — by 3/23/2015), he also issued an order to show cause in one of other Malibu cases assigned to him, in which the defendants were not served past deadline.

The troll reveals the defendant’s name and address in violation of the judge’s order

Two days after the defendant’s motion to dismiss, on 3/13/2015, Malibu filed an amended complaint, and the exhibits, purposefully or not, displayed the defendant’s name and address, which was a clear violation of the 2/26/2015 judge’s order granting plaintiff’s motion to file the amended complaint and summons:

[…]The Clerk is DIRECTED to issue the summons under seal. The Court establishes the following procedure to balance Defendant’s privacy interests with the presumption of open judicial proceedings. Simultaneously with filing its proposed summons under seal, Plaintiff shall also file a Reference List and an amended complaint. The Reference List, which shall be filed under seal, must contain Defendant’s name and any other identifying information that Plaintiff deems necessary to the prosecution of its case, as well as an appropriate identifier that uniquely corresponds to each item listed. See Fed. R. Civ. P. 5.2(g). The amended complaint and all subsequent filings shall be publicly filed and must refer to Defendant only as John Doe and use the identifier provided in the Reference List for other identifying information. The Court reaffirms the other directives set forth in the 1/21/15 Order. (Doc. 20 ).

Fortunately, thanks to the judge’s clerk’s sharp eye, the documents were sealed immediately. Nonetheless, defendant’s attorney was understandably furious, and yesterday he asked the judge to sanction Malibu’s counsel.

In his motion, Jason Sweet claimed that what happened was not a mistake, but a deliberate premeditated action:

On March 13, 2015, Plaintiff, in violation of the Court’s repeated Orders, filed an unredacted summons and reference list with John Doe’s name and address plainly visible. See Docs. 24 & 25. By choosing to file these documents at 8:00 PM on a Friday evening, Plaintiff intentionally chose a time when it would be difficult to correct, and the embarrassment alone might cause John Doe to seek a non-trial disposition just to end the matter. More so, the documents are dated March 12, 2015, further compounding the inference that Plaintiff intentionally waited until Friday evening to file them. Nor is this the first time Plaintiff has indicated a willingness to employ this tactic against Does who refuse to settle.

To substantiate his claims, Sweet listed three other Lipscomb’s cases, in which the defendants’ identities were “mistakenly” publicized.

Judge Black didn’t procrastinate, and today he issued an order to show cause why the troll shouldn’t be sanctioned for a blatant violation of the court’s order:

 

Stay tuned for updates.

 

Media coverage

(more…)

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

Jacqueline M. James
Porn troll Jacquline M. James

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

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

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

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

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

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

 

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

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

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

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

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

Blackmail

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

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

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

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

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

 

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

 

Nicoletti
Porn troll Paul Nicoletti

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

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

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

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

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

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

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

Where are you, Mr. Lutz Paige?

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

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

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

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

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

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

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

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

 

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

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

Update

10/6/2014

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

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

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

Followup

11/17/2014

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

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

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

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

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

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

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

Just look at this:

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

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

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

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


Copyright troll Yousef Faroniya
is looking at the phone with fear

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

And finally,

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

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

 

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

The settlement demand:

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

…was met with a counter-offer:

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

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

Update

9/29/2014

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

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

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

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

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

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

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

 

Update 2

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

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

Sounds familiar?

Followup

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

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

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

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

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

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

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

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

 

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

I wish Francesco Ferreiro and his client to prevail.

Update

9/16/2014

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

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

 

Update 2

10/9/2014

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

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

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

Protective order gamesmanship

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

This case wasn’t different:

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

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

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

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

One-way discovery

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

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

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

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

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

 

Where is the evidence?

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

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

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

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

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

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

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

 

Copyright shakedown is a disease that affects a vital organ — federal courts, and we are currently in the midst of an epidemic. Some virus mutations, like Prendavirus, have been successfully contained, but currently there is no effective cure against another family of viruses that originated in Germany (especially Libscombema pallidum).

Some areas of the US are affected the most: Illinois, Pennsylvania, Colorado… Yet others, as we will see in a moment, try to maintain a good hygiene, and although it is impossible not to get sick, those who at least understand the pathogen’s potential harm and think about the ways to contain the illness, are better off.

M. Keith Lipscomb (via its NJ agent Patrick “Moving Lips” Cerillo) started contaminating New Jersey district in June after a year-long lull (since 8/5/2013). 27 cases were filed on June 17-20, another batch — 19 cases — were initiated on July 10-11. What’s interesting, the judges kept silence for more than a month: in other jurisdictions requests for ex parte discovery are usually rubberstamped in days.

Tonianne Bongiovanni
US Magistrate Judge
Tonianne Bongiovanni

Today we saw the first order, which, alas, has granted the discovery request, but with a twist. When the order starts with

Once again, a veritable orgy of lawsuits involving the alleged infringement of Plaintiff’s copyrighted material have been filed in this Court,

trolls should know that the joy ride to the US citizens’ pockets won’t be quick and easy.

Magistrate Tonianne Bongiovanni‘s concern is well articulated:

This Court has generally granted these types of motions in the past, in many instances simply rubber-stamping the requests. However, since the first round of filings approximately two years ago, courts in this District as well as around the country have grown warier that allowing copyright holders access to all the information requested in Plaintiff’s Motion could result in abusive litigation tactics because of the potential embarrassment defendants could experience given the nature of the copyrighted work.

While the judge reluctantly partially granted the subpoena request (and the blame for it should be placed on lawmakers, not on judges like her), a clear message was sent: pornographers and their greedy lawyers are not very welcome in New Jersey.

I hope some defendants will give a good fight, which should be a bit easier in hygiene-wary New Jersey than in jurisdictions heavily affected by Libscombema pallidum.

 

This is a quick post: even though we discussed it on Twitter, I’m afraid many defense attorneys missed the following GFY comment discovered by Raul.

GFY is a very active message board for adult webmasters and producers. One of the last year threads there (NSFW) discussed Prenda’s fiasco in Lightspeed v. Smith. Amid some local boneheads’ denial of the obvious, there were many rational voices calling Prenda’s practice by its real name: extortion. But the comment in question is not about Prenda at all. It’s more about German puppeteers that run Malibu Media, Voltage Pictures, Vision Films and other American shakedown theaters.

 

it was common practice in germany some years ago to set up a trap, have people download the stuff by P2P, track them down and send them nasty letters
some companies had specialized on that, they offered me a deal where that company, the lawyers and me get 33% each from the money they extorted from people that downloaded content from the trap in place
i refused, many others didnt.

Third Third and Third

The author is apparently the owner of amazingcontent.com (NSFW) — a wholesale adult content distributor, seemingly the rights holder. It’s heartwarming to see that even those who are understandably pissed off by proliferation of unauthorized copies of their content on the web, are not blindfolded by their anger and capable of telling right from wrong. It is ironic that smut producers have more dignity than certain purported Christians who easily take the golden bait from the fishing Satan.

Mounting proof of trolls’ seeding stuff in order to lure hapless file-sharers is troubling yet not unexpected. For example, the evidence of Guardaley seeding the Elf-Man movie is very compelling:

A list of the Vision Films movies uploaded to bittorrent by “HeroMaster.” Turns out the allegations at paragraph 45 of our Second Amended Answer, Affirmative Defenses and Counterclaims were just the tip of the iceberg. Not only did “HeroMaster” initially seed Elf Man and Blood Money before their public release, he/she also uploaded the majority of the Vision Films movies on the “APMC/Vision Films Schedule A” prior to their public release. So,it appears our suspicions are correct and coming to light: Vision Films uploads the movies and then Vision Films hires APMC to track and sue every one who takes the bait. You said our allegations of “barratry” were scandalous, but it appears they are true.

Also, Malibu’s clips appear in the wild merely 4-10 minutes after the release, and the XArt’s owners apparently close their eyes to this Baden-Württemberg sized hole.

So, I just wanted to draw attention to yet another red flag and suggest that Doe defenders and federal investigators start talking to rights holders and attorneys who had been approached by German racketeers to mount the final counter-action that will eventually wipe copyright trolls off.