Guardaley | X-Art
In a well prepared and mighty counter-attack, defendant turned tables against Malibu Media / X-Art
Yet there are few who are not so effortlessly scared and who won’t go away easily. These folks are a real threat to the trolls “business.” So, statistically, yes: there is just a handful of real fighters, those that trolls would never target if they possessed a time machine, but given that the entire trolls’ business is essentially a house of cards, even a single serious counter-strike can severely damage extortionists. I’m not talking about motions to quash/dismiss/sever: I’m happy to see how many are being filed daily, and en masse these motions do make a difference, but, as I mentioned, trolls adapted and learned to live with the necessity to do a mountain of paperwork responding to those motions: a mass BitTorrent lawsuit is still a super-lucrative undertaking despite this unavoidable nuisance.
Getting back to the super-fighters, we witnessed some in the past, and I hope that there are much more on the horizon. Liuxia Wong, with the help of Steven Yuen, inflicted significant damage to Prenda and the entire trolling scheme: she has shown victims that one can fight back and win (yes, win: although the case has been settled, one does not have to be a genius to understand who paid whom).
A class action lawsuit filed recently against five pornographers is also a significant event, but given the nature of class action litigation, it will take years for its fruits to ripen: just look at Dmitriy Shirokov’s class action lawsuit v. Dunlap, Grubb and Blumpkin that Booth Sweet LLC has been litigating for 20 months, and which is not even close to a conclusion.
For the record, it is worth to mention Seth Abrahams, who is currently suing Prenda and Hard Drive Productions and Bailey Zwarycz, who is a sharp bone in the throat of a weretroll Mike Meier.
So I have finally arrived to new and encouraging developments in Colorado, which are the subject of this post. It is kind of unfortunate that the good news from this beautiful state is tainted by a terrible and senseless tragedy.
A month ago we noticed that in one of the Malibu cases run by a super-troll Keith Lipscomb’s puppet Aaron Kotzker, there was a defendant who not only answered to the complaint, declining the wrongdoing, but also included a one million dollar counterclaim. We cheered the defendant, Jeff Fantails, but it was not clear at that time if his claim was convincing enough to be potentially successful. Yesterday, after I read the First Amended Answer and Counterclaim, my doubts evaporated.
The First Amended Answer asserts nineteen(!) affirmative defenses and attacks Malibu Media with six claims including abuse of process, invasion of privacy, defamation, and intentional infliction of emotional distress. The relief sought is one million dollars (in most of the claims). In addition (p. 40), there is an amusing yet reasonable request to run an advertisement in the Sunday edition of a major Denver newspapers stating that defendant was never guilty of the alleged torts. I hope that judge will consider this relief seriously, as reputational damage is much more serious than the loss of property.
The Answer was carefully rewritten, and now it is probably the best explanation of the extortion scheme that exists to date. Like a sponge, it absorbed all the best what was written about copyright trolling, both on sites like this and in the court filings. Reading this document (especially pages 12-33) is essential if you want to understand the gruesomely huge extent of the harm copyright trolls inflicted on the court system, society and legal profession.
Here is this gem:
Another new and important change from the original Answer: exhibits to this filing are very interesting and critical for shaping a convincing counter-claim. These exhibits themselves deserve a separate couple of posts, and maybe I or someone else will corroborate later. I recommend paying attention to the following documets:
- Exhibit E: Declaration of a John Doe defendant, David Kerr’s client, telling the story of the harassment he suffered from a call center — debt collectors to whom copyright troll Keith Lipscomb and his Mafioso organization outsource the actual blackmail and harassment. Note that the goons a) threatened to damage Doe’s reputation (“see your name in the Denver Post by the end of the week”), and b) threatened to report (nonexistent) criminal actions (“exposing minors to pornography”). The latter is a very definition of blackmail, and pretty much damning evidence as such.
- Exhibit B: a business proposal by a German IP “harvester” APMS to a lawfirm, a cynical confession of immorality of the extortion scheme.
- Exhibit F and Exhibit G: Emails that a piece of crap Lipscomb, who has an audacity to call himself a lawyer, sent to a defense attorney Brad Patrick a year ago. No comments necessary, one thing is clear — that Lipscomb is a much more serious enemy than a clown John Steele: the former is clever, inventive and merciless. Crushing his extortion outfit is critical, and I think we need to concentrate more on this previously neglected villain.
The style, attention to details and overall quality suggest that there are some serious forces behind this “pro se” defendant, probably more than a single talented defense attorney. This is a strategic strike.
Good luck, Mr. Fantalis! If you need any help, we will be happy to provide it to the extent that our humble abilities allow.
- 12/12/2012: Follow-up post: Copyright trolls: “We don’t care if you did it or not, we just want your money!”
- 11/9/2012: Follow-up post: Malibu Media v. Fantalis et al: update. Second Amended Answer; discovery sabotage; hearing on the Motion to Compel.
181 responses to ‘In a well prepared and mighty counter-attack, defendant turned tables against Malibu Media / X-Art’
I don’t think he’ll settle if he has a choice. And by choice, I mean if his bank account is big enough. Kotzker will attempt to bury him in filings just to rack up Fantalis’ court costs, which won’t be too large seeing as how he’s pro se. To speed things along, Fantalis could file for Rule 26(g) sanctions for using signed documents to delay discovery, which Kotzker is obviously doing. Kotzker obviously wants to keep Fantalis from getting ahold of a single document at all costs since, at the very least, it’ll result in staggering sanctions and disbarment. But I expect discovery implicate him as a cog in a vast criminal conspiracy.
Kotzer and Lipscomb know that discovery will result in an absolute feeding frenzy by Does, their attorneys and possibly law enforcement. They can’t allow any discovery as it is guaranteed to implicate them in actionable, sanctionable and perhaps criminal behavior. Can you imagine how fast and effective class-actions will be if a pile of Lipscomb’s files are in the public domain? They simply cannot be honest about their actions because there is nothing honest about their actions.
It will be interesting indeed to see what happens if and when the judge approves discovery without a protective order, I wouldn’t be surprised to see them outright refuse to provide the discovery and dare Fantalis and the court to engage in additional motion practice and impose sanctions. They might start waving around some really big settlement offers too… And if that happens this could turn out to be an interesting and profitable counter-trolling strategy for motivated Does looking to be compensated for their trouble as Lipscomb and Kotzer will have disclosed their greatest fear and weakness. When you show weakness you attract predators and Lipscomb and Kotzer are weak, weak, weak.
Hard to find fault with the job Fantalis is doing so far but to make this really fun I would love to see him take a page from Prenda’s playbook with AT&T and Comcast and name Lipscomb as a defendant and a co-conspirator, use the same kind of logic and say he is aiding and abetting, unjust enrichment, etc. Adding Kotzer as a defendant would be fun but he is probably shielded by that corrupt concept of litigation privilege that attorneys got written into the law so they don’t have to follow it. Lipscomb could make a very interesting target as he is the mastermind, but he is not an attorney of record in the lawsuit, nor is his lawfirm on the record, so he may not be very well able to claim attorney client privilege and litigation privilege.
What do you make of this?
MOTION to Strike 62 Amended Answer to Complaint, Counterclaim by Counter Defendant Malibu Media, LLC. (Kotzker, Jason) (Entered: 08/29/2012)
Click to access gov.uscourts.cod.132446.66.0.pdf
Any updates on this case? It seems like troll Kotzker filed a motion for sanctions.
Basically, Kotzker is just saying that the issues Fantalis raises in his counterclaims are frivolous and Fantalis should be sanctioned for it. Again, it’s just a long line of statements from Kotzker which he seems to be making about himself and his own lawsuits.
Interestingly enough, Kotzker claims Fatalis’ wife is an attorney, so I guess that answers a lot of questions.
Actually it’s not a long line of statements at all, Kotzer doesn’t cite anything specific in the counterclaim that he alleges to be factually incorrect. There is literally no substantive content in Kotzer’s motion.
I’m also not sure what Fantalis’ job or his wife’s job has to do with whether or not his conduct is sanctionable. Is Kotzer implying the judge would or should decide differently if Fantalis was not an IT professional or his wife was not a lawyer? What does that have to do with anything? This guy just looks like an idiot. Interestingly he also cites this requirement in FRCP that:
“(3) the factual contentions have evidentiary support or, if
specifically so identified, will likely have evidentiary support after
a reasonable opportunity for further investigation or discovery . .
I don’t know why in the world Kotzer thinks Fantalis won’t satisfy that requirement after discovery; He *knows* discovery will reveal everything in Fantalis’ counterclaim to be true, which is probably why is filing frivolous motions for sanctions. Dangerous game to play, maybe the judge will want to let some discovery happen and let the evidence speak for itself.
These trolls are way out of touch with reality.
Kotzker has named several other defendants in individual,lawsuits but not served them, yet. Wonder if he will after having the Fantalis exploding cigar go off in his face?
His wife is an attorney according to what I’ve managed to find. So what? He’s an IT professional so he knows how big of a crock of shit these claims are. His wife is an attorney, big fucking deal. Pro se defendants can’t be related to an attorney or be IT professionals? It’s a moot point, there’s no reason to even raise the issue. Motion for sanctions….
Click to access gov.uscourts.cod.132446.68.0.pdf
Fantalis’ motion for extension to file second amended answer and counterclaim….
Click to access gov.uscourts.cod.132446.69.0.pdf
In his motion to withdraw his second amended answer and counterclaim, Fantalis basically states that Kotzker pulled a switch on him. First, Kotzker emailed him and consented to an extension while the court was still open, then, after the court closed, Kotzker emailed Fantalis to tell him that he withdrew his consent and had filed an unopposed motion to strike, notice of withdrawal of the unopposed motion to strike, and an agreed motion to strike. Bad faith litigation, anyone? Here’s the motion to withdraw the second amended answer and counterclaim….
Click to access gov.uscourts.cod.132446.70.0.pdf
I like this line from Fantalis’s motion to extend time to file:
“Mr. Kotzker may at some point find himself in need of the kind of generosity and compassion which Defendant is seeking from the Court.”
Yeah, what was that bit about Kotzker being at the mercy of the court? Oh yeah… https://fightcopyrighttrolls.com/2012/08/01/aaron-kotzker-follows-evan-stones-steps-disobeys-courts-order-regarding-subpoenas/
I believe he had a whole lot to say about how he was really busy that day and it just slipped his mind that he blatantly disregarded an order to send names to the court and not to the trolls. Remember Kotzker, karma is a bitch.
Just recapped a new document… I think I’ve spent like $10 on this case so far. I’ve gotten way more entertainment out of it than any trip to the movies, so all is good 😛
“RESPONSE to 60 MOTION for a Protective Order filed by Defendant Jeff Fantalis.”
Click to access gov.uscourts.cod.132446.74.0.pdf
Fantalis vindicates is on page 6: “The “anti-copyright” blogs to which Plaintiff refers are by no means against copyright as a matter of law. What they are dedicated to is the education and support of John Does who have been sued or otherwise approached by a company like Plaintiff. They are anti-mass-for-profit-copyright-litigation-blogs.”
This response contains a number of exhibits that represent a back and forth between Plaintiff and Defendant regarding discovery, and shows how dodgey Kotzker is trying to be. Looks like he’s doing anything necessary to avoid bringing IPP and the rest of his crew to the stand; he knows once the light shines on the deceptions, all is lost.
I like this gem, in response to Kotzker arguing that we (DTD, FCT etc.) share defense strategies and therefore shouldn’t be allowed to see items discovered in this trial:
“[H]ere, there is a far-reaching, nationwide public interest and thousands of litigants in a similar situation, the fact that items discovered in this litigation may be shared with other, similarly situated litigates actually promotes Rule 1 interests and therefore is a factor weighing against, not in favor of, a protective order.”
I agree it is a great read, thanks for the RECAP!
This is great, one of the most productive uses of a Doe’s PACER budget yet.
The attached emails are fantastic, Fantalis lecturing Kotzer is like an adult talking to a child. It’s really funny to see how empty the Trolls’ threats are, as team Kotzer and Lipscomb had clearly not even made the most basic preparations for having to take a course to trial.
Check out the landmine Kotzer stepped on in his ‘clever’ attempt to evade discovery:
Rule 26(a)(1)(iv) requires that Plaintiff disclose: “for inspection and copying as under Rule 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgement in the action or to indemnify or reimburse for payments made to satisfy the judgement.”
Plaintiff’s response is inadequate because it fails to provide a copy of any corporate insurance whatsoever, not even any general corporate insurance policy. Instead, Plaintiff claims that it is uninsured against this lawsuit. That statement strains credulity and is hardly to be believed. However, if that is the case, that does raise concerns of undercapitalization of this entity and doubts as to the validity of the incorporation itself, and could clearly give rise to a situation where piercing the corporate veil becomes necessary.
Apparently these guys really believe they are smarter and more clever than everyone else, when in fact they are mediocrity incarnate.
Fantalis’ request for an order to show cause requiring production of all evidence of harassment is brilliant as well. The scumbag Kotzer has been called out and backed into a corner. His career is over if Trolling doesn’t miraculously get a second wind; who would hire this guy after Googling his name and seeing what a fool he made of himself just trying to bully a pro se defendant?
“Super Doe” Fantalis is F’ing brilliant!!!! The trolls messed with the wrong dude. Thankfully that idiot at Pretenda is starting to name people.
“What is this box i found? It says Pandora on the front? Ummmmm…. lets open it.” -JS
Yep. Remember, Lipscomb had a reputation as a “mean” and “serious” Copyright Troll, and this is the best his crew can do when the stakes get raised. You would think as a matter of professional pride these guys would try a bit harder, but I guess they are even a sadder and more pathetic bunch than I had guessed. I figured at least one person in their organization might have actually litigated a case through trial before, but it looks like they are absolutely terrified of going to court. Pretty sad showing from the guys who filed the case in the first place. If I were Brigham Field I would be starting to worry about the liability these guys are exposing me to, as they appear to just be using him as a pawn, risking his money but not upholding their fiduciary duties.
I am really looking forward to John Steele filing more named cases and watching the disaster that ensues. He appears to be far less competent than Lipscomb, and his buddy Gibbs is a disaster (did you notice how many of Gibbs’ CA cases were referenced in Fantalis’ response?). I’ve been really disappointed in John’s failure to follow through with his threat of filing more named cases, because the more he files the more pain he’s going to bring to himself and, perhaps more significantly, his clients. I’m starting to fear that maybe John is actually smart enough to realize what a dumb idea it is to pretend to follow through with these cases and decided to give up on that plan.
I can’t decide whether it’s more fun watching Kotzker get torn apart by a pro se defendant, or Cable getting torn apart by a lawyer who has 35x the experience and 10x the education that he does. They are both pretty goddamn funny.
The funny thing about Prenda naming individuals is that they have only served a small handful in which the defendant puts in an answer and then the case just gathers dust. Perea has filed a bunch in FL but, to my knowledge, has yet to serve anybody. As these federal lawsuits sit there gathering dust the judges are starting to use Rule 4(m) to dismiss them. Nothing but FUD.
More action today, this time from none other than Marc Randazza, in response to Fantalis’ objection to the amicus brief.
“REPLY to Response to 56 MOTION to File Amicus Brief filed by Amicus First Amendment Lawyers Association.”
Click to access gov.uscourts.cod.132446.76.0.pdf
Nothing really earth shattering in this one. Randazza does a lot of down talking to Fantalis, and just goes on about how his brief is so important and useful to the court. Then there’s this bit:
“Amicus submits that no counsel for either party in this case has any authorship claim to
the proposed brief. Furthermore, no counsel for either party in this case provided any
compensation to FALA for the submission of the proposed brief. Finally, no other individuals or
entities outside of FALA contributed money to the preparation of submission of the proposed
brief. In fact, no party whatsoever provided any financial or other support to the preparation or
submission of the brief except for the undersigned and his brilliant associate, J. Malcolm DeVoy,
IV, Esq, who contributed only their labor.”
But this completely ignores what Fantalis is saying. Randazza keeps saying “in this case” and “no other individuals or entities outside of FALA.” But Fantalis is pointing to YOU Randazza. YOU profit greatly from the copyrightability of porn. YOU have a financial interest in this case succeeding, because as this case succeeds, YOUR cases succeed; and where this case fails, YOUR cases fail. This isn’t about third party interests or parties in this case. This is about YOUR financial interests and motivations.
This “The Emperor Has No Clothes” discovery saga has many delicious aspects. One of them is with respect to plaintiff’s “actual damages” the plaintiff is in a double bind. The troll has 2 unpleasant options with Fantalis’ discovery demand:
Option 1. Hire an economics expert at a cost of $100K-$150K to review Malibu’s historical finances in detail so he can prepare an exhaustive report/give testimony detailing market share erosion, loss of profits, etc, due to piracy and how those damages translate into actual damages allegedly caused by an individual like Fantalis. Not only would such a report rely on extensive speculation and a variety of assumptions which could be easily attacked but Malibu would have to open its books to Fantali’s expert to prepare a counter expert opinion.
Option 2. Admit that the actual damages are a lost sale to a particular Doe (not lost sales to the entire torrent as Lipscomb claims) so the cost of the DVD or $9.99-$39.99. So all these judicial resources are being expended for what, at most, amounts to a round of beers.
In all likelihood the Troll will abandon “actual damages” and elect “statutory damages” but that also opens a can of worms and is a crap shoot.
Option 1 is a little more complicated. I know very few accountants who know much about marketing….marketing where accouting and finance washouts go and the BEC portion of the CPA exam does test marketing knowledge…like 10 questions on it. I do not know a single person in marketing and advertising who are at all familiar with the porn industry. More like hire a CPA firm that does consulting work to review the financials. They’d put together an engagement team consisting of experts in forensic accounting, fraud examination, marketing, finance, etc. They would have to mostly rely on a lot of estimates with high margins for error considering this is not the “The Dark Knight Rises”…it’s a porn movie.
fantalis is my hero.all these trolls keep claiming they are prepared to go all the way and then can’t even produce the discovery requested of them. i remember an old rhyme from when i was a child. it went “revelations, revelations, twenty-one eight, twenty-one eight, liars go to helllll, liars go to helllll, burn burn burn, burn burn burn.” to the tune of farajaka. it seems to fit so well, as fantalis is creating koltzer’s own personal hell.
as far as prenda goes i know atleast 2 of their named cases have people fighting back as well. not quite this fun to read, but they will turn out to be enjoyable. in the Shashek case they have untill the 10th (yea three days left) to respond to his motion to dismiss. does not seem to have a counter complaint, but a dismissal on the merits would still be a victory all the same.
The LMC AZ cases are going to be a revelation.
Am I correct in saying that Adam Sekora and Co. are forcing full disclosure from Jones and LMC, mainly because that’s just the way it works in AZ state court? Hence, the reason Sekora has not removed to the federal level?
Can you say if anyone in the Sekora camp has learned anything tangible at this point that can nail LMC to the wall?
BTW, is Fantalis a lawyer? One would think so after heading his stuff. He’s the man!
Point 2-Do not know, yet
Point 3-Troll Kotzker has pointed out that Fantalis’ better half is an attorney.
On 9-19 FALA was given permission to file its amicus brief. Just another step towards SCOTUS.
Per the 9/6 order, Fantalis is also due to submit a response to Kotzker’s motion for sanctions today. I guess we’ll see that by Monday.
Also, T minus 9 days until Kotzker must deliver his discovery requested by Fantalis. Very exciting.
Kotzker filed a response to Fantalis’ motion to file a second amended counterclaim. I though RECAP was working when I read it, but for some reason it didn’t upload. It’s pretty funny though; basically 6 pages of Kotzker whining that Fantalis is trying to delay the proceedings, which is pretty comical. It’s like this Kotzker guy doesn’t have a memory longer than 10 seconds.
These guys are such incredible pot-calling-the-kettle-black liars. I think in the Zwarsky case one of them said “imagine the shock” of receiving a counter-claim out of the blue “without any warning.” Cable complains about Perkins “wasting precious Judicial resources”. Kotzker complains about Fantalis’ filing “frivolous suits.” Duffy complains about “unwanted public exposure” or whatever.
I hope the judges call them on it.
If there’s one thing trolls are excellent at it is blatant hypocrisy and lying to the court. One dismissal in Florida by Prenda (I believe) stated “in the interest of the court’s time and resources, we dismiss….” and this was after they were backed into a corner by the judge and were told to either serve, name, join, or dismiss if I recall correctly.
I recapped the docket and the response, Tweeted it too 🙂
Click to access gov.uscourts.cod.132446.79.0.pdf
All I see is a shitload of bullshit legalese, convoluted interpretations of FRCP Rules 15 and 16, and a lawyer who is DESPERATELY trying to avoid any sort of discovery because he knows as soon as Fantalis gets his hands on discovery, game over.
“Defendant’s actions demonstrate he is bringing the motion in bad faith and with a dilatory motive. Finally, permitting the 2nd Amended Pleading…because it will substantially prejudice Plaintiff.” Bad faith? What the fuck are you doing, Kotzker? Prejudice the plaintiff? Oh, and you haven’t prejudiced defendants, ever, especially when colluding with Lipscomb. Bah….
“Further, it will prejudice Plaintiff by causing Plaintiff to incur more attorneys’ fees for a third motion to dismiss, and because the pleadings need to be closed for the case to progress in a rationale manner.” Who cares? The judge doesn’t care if it costs them money to defend against a meritorious counter-claim. Plaintiff has no problem incurring attorneys’ fees if you look at all Malibu Media cases filed across the country. As long as those attorneys’ fees lead to money. Money money money money!
“Thus, if Defendant’s amendment is allowed, it will prejudice Plaintiff by causing another four month delay. Thus, the entire calendar will likely need to be enlarged by four to six months.” What the fuck? There is NOTHING in Rule 15 that comes even remotely close to providing for a 120-180+ day delay. Kotzker is just making shit up now.
I like this gem but hope no one gets a cerebral hemorrhage reading it: “Toward that end, and
perhaps out of an over-abundance of caution, as is undersigned custom, Plaintiff is waiting for
the pleadings to close prior to propounding discovery.”
The judge has already ordered Kotzker three time to turn over discovery to Fantalis. This line seems to fly right in the face of the latest 9/6 order in which the Judge said Kotzker must turn over discovery on 9/30. With the above line Kotzker basically is saying “nah…. I think I’ll wait.” Will be interesting to see what the judge thinks of this.
Too late. Kotzker is just chucking wet noodles at the wall and hoping one of them sticks. The only reason why this is even being argued is because Kotzker pulled that douchebag move by agreeing to a three-day extension then reneging five hours later and filing three unopposed motions…at the midnight hour. Ironic.
Kotzker’s just does whatever the fuck he wants. He’s already facing sanctions in EDNY and now he’s basically giving the middle finger to Hegarty’s order. How much do you wanna bet that Kotzker won’t comply with the order to turn over discovery by the 30th? I’m sure Kotzker is more frightened of turning over discovery than being sanctioned. I know I would be if I were him.
Just clicked on Jason’s pic above…..funny
Today we have Mr. Fantalis’ answer to Kotzker’s motion for sactions, and it’s quite a doozey. In short he argues that Kotzker’s motion is inappropriate for several reasons, including that it does not conform to Rule 11 standards, and that the trial is so novel; however more importantly he takes the majority of this 41 page filing to flesh out and reaffirm the arguments put forth in his counterclaim.
Further, he adds the affidavits of three local doe defenders who submit that they allowed Kotzker near unfettered access to their client’s computer systems to provide exculpatory evidence and Kotzker refused.
Finally, he submits the declaration of a 66 year old defendant who attempted to provide Kotzker exculpatory evidence in the form of Geek Squad records which show that she had no use of her computer systems during times of alleged infringement, which Kotzker also refused.
This is a very long read, but well worth it as there are tons of little gems buried inside, including a shout out to this site. Fantalis does a great job calling out Kotzker and the whole troll gang on the bullshit they’re pulling on the courts and innocent Americans, and never pulls any punches.
This guy is my hero.
A Troll is bleeding in the mountains and the wolves are circling.
Thanks for pointing to this as it a great read and a masterful job of ripping apart the patina of legitimacy these trolls try to erect to hide the extortion scam.
Of course anyone looking for a link, it’s recapped: http://ia601204.us.archive.org/12/items/gov.uscourts.cod.132446/gov.uscourts.cod.132446.80.0.pdf
This humble blog is noted in a footnote. Regarding 10% and Brigham filed. According to sources, B. Field went ballistic at Adam Curry for airing that episode.
Cat, would you like to go back in the bag? No, I’m good out here. Thanks anyway.
all throughout the response he points out that he should not be visited by rule 11 sanctions but that by not “vetting” the does to properly assess that they are indeed the infringers it is the plaintiff who has completely ignored rule 11. Jeff if i lived in CO i would buy you a beer.
Troll Kotzker put in a reply to Fantalis’s response today, I did not RECAP it as am over my self-imposed daily PACER allowance.
Actually it’s a reply by Fantalis to Kotzker’s objection on the motion to file the second amended counterclaim. Pretty good stuff as usual.
The judge issued an order on the protective order, granting it but not the blanket order that Kotzker was looking for. I think it’s pretty fair. Essentially Kotzker must label specific items confidential and give reasons for why they are confidential (as Fantalis requested). No doubt Kotzker will mark everything as confidential and Fantalis will raise objections.
However, most importantly the confidentiality is not extended over to trial, and the trial will not be under seal.
“This Protective Order shall not apply to the disclosure of Confidential Information
or the information contained therein at the time of trial, through the receipt of Confidential
Information into evidence or through the testimony of witnesses, or in any alternative dispute
resolution proceeding including arbitration and mediation. The closure of trial proceedings and
sealing of the record of a trial involve considerations not presently before the Court.”
Seeing as this case is crawling toward trial, I think we’ll see the evidence we want to see sooner or later.
Seriously, if billion dollar corporations like Apple and Samsung can’t get their trade secrets under seal for a billion dollar trial of the year, what hope does this lowly porn purveyor have?
The ruling and protective order are available for free on PACER.
Hegarty granted the protective order but read between the lines.
“For each such designation, the Producing Party shall identify the
specific grounds upon which a claim of confidentiality is being made (e.g., avoid harassment by
nonparties; confidential research, development or commercial information; etc.) with sufficient
explanation to permit any Objecting Party to intelligently respond to the confidentiality designation.”
I’d LOVE to see Kotzker’s justification for making the agreement between him and Brigham Field “confidental.” Hegarty hasn’t seen any of this stuff, he’s relying on Kotzker’s statements under oath. I doubt Kotzker will even comply. This protective order is just a delay tactic. He can’t possibly turn over potentially incriminating documents that could trigger federal charges. Hegarty sure as hell won’t stamp “Confidential” on anything like that because he’s got his own ass to worry about.
Ugh. Hegarty recommended that Kotzker’s motion for default judgment against Defendant Dunn be granted.
“RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE that 41 Plaintiff’s Motion for Entry of Default Judgment against Defendant Dunn be granted. By Magistrate Judge Michael E. Hegarty on 10/2/12. (mnfsl, ) (Entered: 10/03/2012)”
He also granted the motion for a protective order but put a giant caveat in it. He has to vet EVERY SINGLE SHRED of discovery that Kotzker claims is “confidential.” If he doesn’t like it, then it’s not confidential.
Granting protective order…
Click to access gov.uscourts.cod.132446.82.0.pdf
Click to access gov.uscourts.cod.132446.83.0.pdf
Kotzker replied to response to motion for sanctions. Can any one recap?
Will do soon. An update to this case is long due, and my next post — if not today, than tomorrow — will be dedicated to Fantalis.
Here ya go. Just a tease…
“Defendant’s Memorandum in Opposition to Plaintiffs’ Motion for Rule 11 Sanctions is a
long winded parade of tortured reasoning that at every juncture underscores the necessity of
imposing sanctions. As explained below, Defendant unreasonably fails to apply the law to facts
– or to accept the clear results thereof. Motivated by the knowledge that his claims are meritless,
Defendant engaged in a pattern of bad faith gamesmanship and intentionally delayed this court’s
analysis of his claims.”
Click to access gov.uscourts.cod.132446.85.0.pdf
12/12/2012 Follow-up post: Copyright trolls: “We don’t care if you did it or not, we just want your money!”
according to nicoletti (http://ia601505.us.archive.org/12/items/gov.uscourts.mied.270710/gov.uscourts.mied.270710.32.0.pdf)
“Malibu Media, LLC owns http://www.x-art.com (“X-Art”), a website where subscribers can
join and view movies created and directed by Brigham Field.”
so they are not a asset-less shadow company. xart and all of it’s content is owned by malibu and can be sold to make reparations from judgements levied against them. brigham could lose his whole shebang because of this little suit. and i hope that he does. force them to auction off xart and it’s content to pay their legal losses just like they did to righthaven. that would be true justice.
Nicoletti is like a gift that keeps on giving, and giving, and giving…. This time, he bones one of his clients. Not unheard of for him, not even surprising actually but MM won’t do a damn thing and we all know why.
Fantalis filed a Second amended Answer on 10-23, Judge Hegarty issued another Protective Order on 10-24 and set a hearing of 11-5 on Fantalis’s Motion to Compel & Requests for Sanctions
I wonder if there are any new additions to the second amended answer.
As for that hearing, boy would I love to be a fly on that wall. I expect Kotzker is going to be reamed. He has been ordered 3 times by the judge to produce discovery, and in the latest order, the judge said essentially Kotzker cannot hold out on discovery on the basis of pending motions. I suspect he will say much of the same at the hearing, but this time with teeth.
Kotzker ignores the fact that he hasn’t produced discovery and instead submits a request for a new schedule.
Click to access gov.uscourts.cod.132446.92.0.pdf
I don’t understand, why would the plaintiff be delaying? Didn’t they file a lawsuit because they wanted to litigate a lawsuit?
Have you read the Second Amended Answer and Counteraction? Fantalis is gonna tear Kotzker to shreds. He wants details on…well, everything. Kotzker is delaying because he absolutely cannot allow Fantalis to get his hands on any information. He’s willing to be sanctioned instead of turning over discovery. What does that tell you?
Big update on the case Friday…
Kotzker refiled his motion to dismiss, haven’t recapped it.
But here’s the good stuff: Kotzker filed a motion for extension of time to respond to Fanalis’ motion to compel, a motion to continue the hearing on 11/5 (tomorrow), and a motion to stay discovery until a judgment has been made on his motion to dismiss..The motion was summarily denied without prejudice (http://ia601204.us.archive.org/12/items/gov.uscourts.cod.132446/gov.uscourts.cod.132446.98.0.pdf), citing a rule that this kind of thing should be made in separate motions (what is this, amateur hour? Shouldn’t a guy like Kotzker know this?)
So he refiled each one in a separate motion. I haven’t had the chance to recap yet, but the the nature and timing of these filings says a lot on their own. First, Kotzker seems pretty pressed for time. Not only filing a motion for extension of time to respond to an item that has been on the docket for almost a month, but filling a motion to continue a hearing only one working day before the hearing seems extremely sloppy to me.
But if we ever needed more evidence that under no circumstances will Kotzker hand over discovery unless the judge is holding the proverbial gun to his head, his motion to stay discovery tells the whole story. To date the judge has ordered Kotzker to hand over discovery multiple times, the latest one stating Kotkzer could not hold off just because he thinks Fantalis’ counterclaims will be dismissed.
It’s just unbelievable how obstinate these people are being over the most basic legal procedures. Discovery is designed to bring everything out in the open for court proceedings, yet these guys refuse to do so and keep the defendant in the dark. But the fact they’re fighting so hard to hide discovery is highly highly instructive, and every time they wiggle we become more and more sure that this whole enterprise will come toppling down the moment every fact is on the table.
But we’ll get the facts one way or another. Either through Fantalis or the Bellwether… this time next year I suspect the kinds of stories being posted on this blog will be about jail time and disbarment for certain individuals.
It is unbelievable how “Lipscum” tells Baylson (presiding over BellWether trial) that this trial is in an advanced stage yet Kotzer is still pulling this crap. I thought these guys wanted to litigate and prove their claims true on their merits. What more evidence do the judges need that these trials are built on houses of cards?! Sanction this d-bag; put him in contempt and threaten jail time if he doesn’t comply; do something!
Exactly. It’s advanced compared to any other troll lawsuit, but this tug of war over discovery has been going on for months. Discovery was due 12/21, but because Kotzker’s “playing the game” this obviously will be delayed.
Lots of recent activity in Fantalis’ case: http://ia701204.us.archive.org/12/items/gov.uscourts.cod.132446/
Can anybody RECAP the latest?
Nevermind, it’s in there just out of order due to going into the 100’s.
Yes, I recapped many yesterday and I plan to write an update post this week.
The summary seems to be that Kotzker is continuing to delay, and the court is not amused.
Man Oh Man! This lawsuit is trench warfare but Kotzker’s munitions are running low. Could have sworn I heard a lashing yesterday.
More activity in the Fantalis case. There was a hearing last week pertaining to the following:
+Plaintiff’s Motion for Extension of Time to File Response to Defendant’s Motion to Compel
+Plaintiff’s Motion to Stay Discovery Pending the Resolution of Plaintiff’s Motion to Dismiss the Second Amended Counterclaim
+Defendant/Counterclaimant’s Motion Pursuant to Fed.R.Civ.P. 37(a) to Compel Plaintiff to Produce Answers to Discovery Requests and Request for Sanctions
+Plaintiff’s Motion to Modify Schedule
After a 3.5 hour hearing, we’re left with a summary of the order (Doc 109, which I’ve recapped but isn’t showing up yet). So here’s the rundown: I don’t know what the Judge’s tone was during the hearing, but by looking at his words it seems like he’s run out of patience for Kotzker’s unwillingness to proceed.
“The Court warns Plaintiff that if deadlines set are not met, the case may be dismissed for a failure to prosecute.”
Yikes… that certainly wouldn’t look good for these cases around the country, where local counsel swear up and down that they want to bring these cases to trial, yet here’s one that went to trial, and was dismissed for failure to prosecute. So after all his squirming, the only thing left for Kotzker to do is actually proceed with Discovery.
It seems like during the hearing they went through Fantalis’ discovery requests line by line and the judge ruled on each. I’ve compiled a list of the Documents the judge ruled Kotzker must produce:
6 – All communications of any kind between you and anyone concerning enforcement of Plaintiff’s copyrights against internet infringement, including all email communications of all present and past board members and present and past employees.
7 – Plaintiff must produce communications with M. Keith Lipscomb between August 2011 and the present.
17 – Plaintiff is required to produce any agreements between Plaintiff, IPP Ltd., Tobias Fieser, Brigham Field a/k/a Brig
Field, and Colette Leah a/k/a Coco Leah.
18 – Employment/retainer agreements or other contracts by and between IPP Ltd., and Plaintiff.
31 – Plaintiff’s business license or other similar document
43 – All documents constituting Plaintiff’s annual filings submitted to California Secretary of State.
50-h – Produce and identify all documents relating to federal record keeping relating to the age and consent of the actors in the Work.
51 – Plaintiff shall provide the total amount received to date in settlement with the thirty Doe Defendants named in the original, related action. The Court warns that this information is to remain confidential and not to be disclosed by Defendant.
58 – All documents relating to the hiring of all persons depicted in the Work(s).
Numbers 7, 17, and 18 are big ones. 51 is a big one too, although we won’t get to see that number. I’m sure it will be of great help to Fantalis. Here’s a list of the admissions that were object to but the judge ordered Plaintiff has to make as well:
67 – The works or any individual Work has not/have not generated any revenues that were not related to litigation since its/their creation.
79 – Because the dates of alleged infringement in the Complaint are all different, there is no possible way for any of hte defendants to have worked together in a Bittorrent swarm.
99 – Of the hundreds of John Doe lawsuits Plaintiff has filed across the country, Plaintiff has never litigated a case all hte way to a judgement in court.
100 – Plaintiff has never taken discovery nor been the subject of discovery
101 – Plaintiff has never taken a deposition nor been the subject of a deposition
108 – Plaintiff did not issue any DMCA takedown notices pertaining to those 30 alleged incidents of infringement
111 – Plaintiff did not issue any “cease and desist” letters
114 – Prior to filing this lawsuit, Plaintiff did not contact any Bittorrent websites and demand Plaintiff’s works be removed from the site.
117 – At no time has Plaintiff contacted any Bittorrent websites and demanded Plaintiff’s works be removed from the site.
119 – The document entitled “Porn Companies File Mass Piracy Lawsuits: Are You At Risk?” by Jason Koebler is authentic.
142 – Tobias Fieser has, or is employed by a firm that has a financial interest in the settlement in this case
143 – Tobias Fieser has, or is employed by a firm that has a financial interest in any judgement in this case.
186 – Individuals who were not infringers have in fact settled claims with Plaintff out of fear and/or embarrassment
197 – IPP Ltd., receives a portion of any settlement or judgement in any copyright infringement matter pursued by Plaintiff
200 – Plaintiff or its representative told Defendant that his name would be searchable on Google as associated with this lawsuit.
212 – The works depict sexual activity
I love that last one. Plaintiff is so compabtive and unwilling to produce ANYTHING they won’t even admit that the already admitted pornographic works depict sexual activity unless the judge forces them to. I wonder if Malibu Media would admit if the sky is blue and the sun rises in the east.
A great number of objections were sustained, although looking through them, none seem particularly consequential. Even more were denied without predjudice, probably until the motion to dismiss is ruled upon. Regardless, Kotkzer must begin production today, Nov 9, and everything should be in Fantalis’ hands by Nov 26. If he delays one single day, you can bet this will be thrown out.
Finally, the document concludes with this warning from the Judge:
“The Court reminds the parties that ex parte communications are improper and will not be allowed going forward.”
I wonder who that was directed at.
Great minds think…. in parallel 🙂 Just made a post about the hearing. You may want to repost your comment there.
109 won’t show in Recap. For some reason those Pacer documents that are available for free (but you still need an account!) don’t end up on the archive.org. That’s why I put this doc to Scribd (embedded in the post mentioned above).
Anti-Piracy Management Company (www.apmcllc.com) Anti-Piracy Management Company does not have any Key Executives recorded. (http://investing.businessweek.com/research/stocks/private/snapshot.asp?privcapId=146270146) This is supposed to be a business without people? REALLY?
This was included in the Google search results for the Anti-Piracy Management Company “The organization responsible for privacy protection in Italy has declared that Logistep has been operating illegally. The Garante della Privacy says that the anti-piracy company breached the privacy of thousands of P2P users when it tracked and reported them to media companies.” (http://torrentfreak.com/anti-piracy-company-spied-on-thousands-of-p2p-users-080317/) Italy declared “The use of P2P software is limited to communication with other P2P clients for the purposes of sharing files. Such software cannot be used for monitoring P2P users.” it’s been decided that Logistep itself was committing the offenses (in many locales, data protection offenses are criminal in nature)
(http://torrentfreak.com/50-cent-movie-copyright-trolls-set-to-chase-down-alleged-university-pirates-130315/) “To collect its evidence Contra Piracy used anti-piracy monitoring company Logistep, a company that became infamous in the UK for its connections to troll pioneer law firm Davenport Lyons. Logistep was later banned from monitoring alleged pirates in its home country.”
…remember to just follow the “breadcrumbs”…
Pingbacks & Trackbacks