Copyright trolls

Bellwether trial update: Telephone conference, new filings

Previous coverage:

Judge Baylson held a telephone conference with plaintiff’s and defendants’ attorneys yesterday. Some notable points:

Baylson casually mentioned (at 5:50) that he had notified the Judicial Panel on Multidistrict Litigation about his cases. Judge’s comment seems to have caught Keith “Weasel” Lipscomb off guard. He obviously sounded alarmed. It is not clear why Lipscomb mentioned Fantalis’s case, talking about it as one at a very advanced stage (pity that the judge does not know that Lipscomb meant an advanced stage of the discovery dodging).


Lipscomb mentioned that he filed several amended complaints (one of them is embedded below) and served the defendants. Lipscomb’s amended complaints include additional instances of infringements for the same people: more movies and at least in one case another pornographer, Partrick Collins, was added as a plaintiff. An open question is why Lipscomb has been sitting on this (allegedly credible) information and did not claim those infringements in the original complaints. I would be happy to listen to opinions.

Charles Thomas filed a motion for sanctions against Lipscomb because of his outrageous behavior. In short, Lipscomb filed “notices” of service without defendant names being redacted, which clearly contradicted the judges’ order. It took a lot of effort (notices were filed on Friday at 8 pm) for defense to find an emergency clerk and seal those documents. Should anyone have accessed those documents with Recap plugin running (and many of us have this plugin installed) over those two hours when documents were available on Pacer to everyone, the names would be posted on the, and it would be impossible to remove them. Fortunately, it did not happen, but in order to minimize the likelihood of unfortunate events, I urge defense attorneys to contact me immediately if a similar situation happens in the future (remember: we deal with the very bottom of the legal profession here, and there are no guarantees that such “bloopers” won’t repeat). I’ll contact the people who are most actively recap court documents and ask them to refrain from accessing particular filings.


  • On 10/8 Doe # 16 (Ronald Smith — 12-cv-02078) filed his Answer and Counterclaim. He lists 10 affirmative defenses and 4 counterclaims:
    • Misuse of Copyright
    • Declaratory Judgment of Fair Use
    • Declaratory Judgment of Implied License
    • Declaratory Judgment of Non-Infringement
  • On 11/15 Lipscomb replied (opposed) to the motion for sanctions. Dogs, homework, honest errors… Deja vu all over again.
  • On 11/16 Doe # 6 (Charles Thomas — 12-cv-02084) moved to dismiss certain counts the infringement due to lack of standing (invalid, fraudulent copyright registration), and to dismiss the entire amended complaint because

    …nether Malibu Media nor Patrick Collins have obtained the necessary certificate of authority from the Pennsylvania Department of State, and are therefore barred from commencing a civil action in Pennsylvania under 15 Pa.C.S.A. §§4141 & 8587.

    See the brief in support of the motion to dismiss (Exhibits are not yet recapped).

  • On 11/13 Jordan Rushie appears as a counsel for Doe # 13 (12-cv-02088).
  • Two other counsels, Leonard French (Doe #1) and Thad Gelsinger (Doe #14), requested extension of time to file their answers (Documents 51 and 52).
  • On 11/20/2012 Jordan Rushie and Marc Randazza (yes, you read it right) moved to dismiss the amended complaint. At this moment I experience some kind of cognitive dissonance and will refrain from comments. The memorandum per se is rather good, although has some dangerous provisions (like declaring swam theory absolutely valid and joinder based on it absolutely proper: locally, tactically it maybe brilliant, but it may have long-time negative consequences). Again, I digress: I’ll postpone expressing my thoughts till after the holidays.
  • On 11/28 the Court held an extensive Rule 16 pretrial conference with counsel on November 28, 2012, following the filing of a Rule 26(f) Report. Although the record of the hearing should be consulted for details, the Court summarizes scheduling orders as follows:
    1. The three cases noted above will be consolidated for all pretrial purposes.Therefore, counsel and the Court will use the caption of Civil Action 2012-2078 in all future matters filed with the Court. No agreement by counsel or decision by the Court has been made concerning consolidation other than for pretrial purposes.
    2. Plaintiff will file its responses to the Motions to Dismiss by Wednesday, December5, 2012. Defendant shall file one or more reply briefs by December 19, 2012.
    3. The Court encouraged counsel to have detailed discussions about the scope of discovery and any objections that have been or will be served to written discovery requests. If issues remain unresolved, the Court requested that any Rule 37 motions to compel be filed by January 10, 2013. The Court will likely have a phone conference with counsel to discuss these objections and may order a hearing or more detailed briefing. The Rule 37 motions should state the grounds in some detail, but counsel need not file a memorandum of law.
    4. Plaintiff indicated that it will be serving several notices of third party depositions under Rule 30(b)(6) to take place in January, of internet service providers and companies that perform search engines. The Court anticipated there would be some delay in the actual deposition to allow for the third parties to consider the document requests and negotiate production of documents. The Court understands that all counsel in this case will serve any documents received from a third party on all other counsel in this case.
    5. Plaintiff will provide identification of its experts by December 21, 2012, together with resumes and other biographical material pertaining to its experts. The Court encouraged plaintiff’s counsel to be prepared to identify their experts by the end of January, 2013. There was extensive discussion about other discovery matters, but without any rulings.
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101 responses to ‘Bellwether trial update: Telephone conference, new filings

  1. If only their actions were suprising to me.
    Spiteful retalliations or sheer incompetence, we may never know.
    But once they learn their stupidity has a cost, maybe we can expect better.

    • Agreed. We may never know. I can see how it could be incompetence–an error of some sort. And, given that the main thrust of these cases, accusations, “settlement” letters, etc., is public humiliation, it does give me pause. From the perspective of a doe–were I one of these does, and I had done my research and seen examples of the “Halloween letters” that are being sent to those whose info has been released, knowing that the demands were being made to pay the settlement and your info is safe or don’t pay and the world will be told–given all of that, I would see it as purely vindictive for forcing this thing to trial. Maybe I’m just paranoid that way, but I have family and friends in the legal profession, and I know how it’s supposed to work, and if the judge says to redact info, you make damn sure that info is redacted. Sorry, this has me seeing red, I should stop now.

    • Sometimes I wish I just had a plane ticket and popcorn… Their lawsuits HAD to end [badly]… There is no way the U.S. court system would indefinitely allow hundreds of lawsuits all with none of them going to trial. The ‘jig’ is up, and it’s only a matter of time. Plaintiff copyright trolls need to change their game or get out of the way of lady justice. Perhaps they’ll continue to play dodgeball with the blind, who knows… We’ll see.

  2. Well it’s just more arrogant hype from the trolls, lol. I imagine the “weasels” peers are half sneer, half laughing behind his back; wondering wtf he thinks he’s accomplishing by pissing off another judge to add to our list! LMFAO!

  3. Here are some choice quotes from the motion for sanctions:

    Charles Thomas questions Lipscomb’s competency:

    “It should further be noted that all this additional work is not the result of a legitimate dispute over discovery or the merits of the case — this was about service, a function so basic that it is usually effected by assistants and clerks, not lawyers (or even paralegals).”

    Gives Lipscomb the choice of either being malicious or incompetent… you know you’ve messed up when that’s the most optimistic outlook:

    “The Notice of Service — which Notice was not required by either the Rules, nor the Court’s October 3 or October 17 Orders — was a mere two sentences long; it begs the question whether Plaintiff’s counsel intentionally violated the Court’s Orders or is simply that incompetent.”

    And here’s my favorite:

    “The Lipscomb Memo reveals a more pervasive pattern of falsehood. As noted above, Mr. Lipscomb admitted to drafting the Fiore Reply and averring facts in it which were not, and could not, have reasonably been personally known by him. Relying instead on processes and procedures which are purported to happen “automatically,” Mr. Lipscomb had no actual knowledge of the veracity of the facts he was averring. The lasting impression is that Mr. Lipscomb himself had no idea what was going on within his own firm — let alone in Mr. Fiore’s firm — yet he drafted at least one filing under Mr. Fiore’s signature (It is unclear which, if any, of the documents bearing Mr. Fiore’s signature were actually drafted by him) and made factual averments which turned out to be false.”

    As for Lipscomb sitting on the other titles, these cases originate from a while ago, when settling for a single film for ~$3000 was commonplace. Malibu Media changed their tactics recently and started leveraging multiple infringements, for a settlement of between $5k – $10k.

    I think they’re just trying to put more pressure on the defendants, but honestly, for most people whether they’re facing a facing $150,000 judgment or a $900,000 judgment makes no difference.It might as well be $10 billion.

    Actually, I think it’s a mistake for them to do so. With more dates of infringement, it’s easier for an innocent party to provide an alibi. If you can prove you were away from home for one of those dates, it brings into question all of them. Further, it puts additional burden (costs) on the plaintiff to search for more films on harddrives. If they’re just not there, and never were there, I say let Lipscomb sue for every film in the catalog… they’re never going to find them.

    • I’m somewhat surprised he didn’t also go for questioning the misleadingly false story about the burst pipes, which happened months earlier as was discovered on the other blog comment thread….

    • Also, raising the stakes by asking for more $$$ means more people will fight back, because either they have more to lose or nothing to lose.

  4. Referring the nationwide extortion scam to the JPML is brilliant and I hope they decide to consolidate all the lawsuits. While they are at it they should take a hard look at Prenda’s nationwide terrorist ploy.

    With respect to Lipscomb deciding to pile on additional infringements I think he has had his hand forced by Judge Baylson. If I understand CEG’s MO correctly they sue/threaten some infringements and once they get a Doe to the bargaining table they spring additional previously undisclosed infringements to hammer out a higher settlement. It is part and parcel of their standardized terror strategy but they do not have the chance to effect this strategy in this case so they are just piling it on now.

  5. Really amazing Lipscomb would mention the Fantalis case. If Baylson doesn’t already know about that case, which he might considering his proactive behavior here (especially the referral to JPML), he sure as hell will be looking the case up now! I doubt he will be impressed when he discovers Lipscomb’s idea of an advanced stage of litigation for these cases is one where the plaintiff has refused to provide ordered discovery, what, three times now?

    Pathetic. Lipscomb’s train is coming off the rails between the bellweather trials and Fantalis.

  6. Just got a chance to listen to the conference, so a couple things:

    I was really taken aback by Lipscomb’s voice. Not what I was expecting… I literally laughed out loud. This is the guy terrorizing thousands across the nation?

    Also, Fiore’s outburst near the end was interesting. He claims that Charles Thomas was incorrect in his statement that the names were available for all to see. I’m looking forward to see how Fiore will be able to explain that the names were in fact private on PACER. Or maybe he’s interpreting the Judge’s ruling differently? Not quite sure what kind of defense he’s going to cook up for this one, but let’s hope it’s better than “The floodwaters in my office ate my homework”

    • “[F]loodwaters in my office ate my homework.” LOL. Yep, can’t wait. Still waiting for the aliens, though. Maybe they brainwashed the clerk when Fiore filed.

  7. I have received a notice from the ISP related to similiar case in NJ, i dont think i have downloaded the file as claimed, i live in anhigh rise apartment complex and several friends and neighbours have access to this connection, what should be my action, should i apply to quash or simply wait for the real summon? looks like opinion on net is very devided on this matter, many have argued that motion to quash is simply waste of time, any suitable forum to discuss this matter?

    • On information and belief, Plaintiff/Counterclaim Defendant affirmatively “shared” its works via a torrent protocol to ensure that its works would be readily searched,
      Case 2:12-cv-02078-MMB Document 34 Filed 11/08/12 Page 10 of 14
      indexed and accessed such that it would artificially create the basis of a copyright infringement claim.

      Am I reading too much into this, or does this mean they have some sort of proof that Malibu is seeding/releasing the torrents themselves?

        • Yeah, I get that, it just says “information” in the document, making me wonder if they have evidence now over conjecture.

        • “On information and belief” is a qualifying statement used when the information isn’t firsthand and you don’t have any hard proof. The idea is that through discovery, you find the proof you need.

          The “information and belief” in this instance I believe comes from the fact that IPP is gathering information by participating in a public torrent. Most torrent trackers will not allow swarm members who do not upload, therefore IPP is participating in the swarm and is either just as guilty as any other swarm member, or by uploading they are tacitly giving consent to download the works.

          If IPP is not participating in the swarm, it implies that they are running their own tracker, and again are tacitly giving consent to download the works.

          This is why discovery on IPP is so important. We need the EXACT and SPECIFIC procedures (none of the nonsense watered down “procedures” in the Tobias declaration) they use to harvest their IP addresses, because if they’re participating in the swarm in any way or running their own trackers, it’s not good for their case at all.

  8. Looks like Jordan Rushie is now representing Doe 13:

    What’s the deal with this guy now? Do we trust him yet? He was once a troll himself:

    Has he come around to the light side of the force? It could be a great benefit in this sort of case to have previously argued the opposing side.

    • He was never deeply on the dark side: he was a local counsel for Randazza and the case did not work out as you know. So he never called Does demanding money or sent out nasty letters. As a matter of fact, he learned a lot about the injustices of these cases and made a decision.

      Moreover, his choice of helping Does is a sincere gesture to the best of my knowledge. Also, unlike scumbags we deal with here, Jordan cares about his reputation, and he is deeply embedded in a local legal community, and that community does not approve trolls (to put it mildly).

      • It’s good to know some people out there can tell the difference between right and wrong. It speaks volumes, though, about the character of others like Kotzker and Cable, who when confronted with the dark side embraced it fully.

  9. Let me be the first to say that Charles Thomas ‘s motion to dismiss the complaint on behalf of his client is sublime. Concise and forceful. Best line IMO while referring to Lipscomb’s feeble attempts to paper over the fraudulent copyright registrations: “Here the law, is clear-what the Plaintiff is trying to do is illegal.”

  10. Any thoughts on this….. I’m in Eastern PA Court. Malibu Media dismissed all Does. Probably going to go after all with their typical call center, letter of intimidation and threats of lawsuit unless you pay them extortion money, etc. I’m wondering if I should just sit back and ignore them or should I file a motion asking judge to order that they can’t use subpena ISP info as they had no standing, not being owner of work(s).

    What should one do here? I don’t want to lose any chance here is placing hurdles in front of these people or give them chance to clear up their ownership, corpyright registration mess.

    • For the time being IMO, sit back and see how this all shakes out in PA and MI. There will likely be more motions made in other districts attacking the copyrights registrations and Malibu Media’s standing.

    • MM hasn’t filed a case in PAED since 9/20, exactly two months ago. They probably won’t until this Bellwether trial gets worked out, and if it’s not favorable they will probably be kicked out of PAED altogether.

    • I’m sorry. I wish Randazza would pick a side. He farmed work out to Rushie in PA who then decides not to be a troll anymore. However, it’s a bit disconcerting to see both their names on a document together. Maybe Rushie has renounced his ways but we know Randazza must be doing this because it somehow benefits him in the long run. I don’t care what you say, you can’t objectively argue for both sides.

      • At the moment I don’t know what to say and rather listen than talk for the time being… I’m not happy seeing Randazza’s name on “our” side simply because I don’t trust this man, while I admit his professional excellency. All this time I tried to avoid looking at these cases as a big chess games (simply because instead of figures we have real tragedies on the board). The complexity (and visibility) of a situation makes certain people intellectually horny, so they do whatever it takes to join in. Will R. inflict harm? Not necessarily, on the contrary, he can help this particular case, but what I ask is to ALWAYS remember about the real people behind exciting Queen-Castle-Pawn threesomes.

  11. One thing that has become clear to me in the year since I was accused and flocked to this site – Lawyers really need to proofread better or pay someone to proofread better.

      • No, I know that was Rushie/Randazza/Cashman theory to agree to joinder to make it more difficult to prosecute. Just various typographic issues throughout a lot of these memorandums.

        What I like about this brief is that it drives the “honeypot” angle home, and points out that these ‘works’ are distributed for free at many different easily accessible areas.

  12. Wow! that was like listening to a jackhammer break thru a weak foundation: every sentence chipping and hacking away the plaintiff’s assertions. Randazza may be a slimy lawyer but it’s always a pleasure to watch someone expertly practice their skill, no matter what it may be.

    Still think we’d be better off if we could transplant all lawyers to a remote island and let them loose on each other; then the rest of us could get on with our lives and maybe even make this a better place with some forward progress for a change…

    • So I’m confused on a couple points here.

      4. Plaintiff indicated that it will be serving several notices of third party depositions
      under Rule 30(b)(6) to take place in January, of internet service providers and companies that
      perform search engines.

      What in the heck are they hoping to find from ISP’s and google searches? Aside from possibly stretching out the trial?

      5.”Plaintiff will provide identification of its experts by December 21, 2012, together
      with resumes and other biographical material pertaining to its experts. The Court encouraged
      plaintiff’s counsel to be prepared to identify their experts by the end of January, 2013.”

      So they have to provide the ID by 12-21 but won’t give their ID’s out until the end of January?

      • The ISPs will be able to provide details such as account records and if the defendant account ever had excessive downloading or DMCA notices. Still doesn’t directly show a defendant did it, just his account activity.

        The Internet Search Providers is likely some Torrent Search engines. Not sure if they will get anyone to depose from them. It will be interesting to see what logs these search engines have – if anything.

        DTD 🙂

        • Well given that they don’t send out DMCA notices, and the amount someone downloads on what ports shows absolutely nothing about anything, it just seems a pointless waste.

          And the Torrent Search engines depositions seem redundant.

        • If that’s supposed to mean Google, Yahoo, Microsoft, et al. this will turn into a bloodbath. After Fantalis laid out MM’s fraud and their fears and weaknesses, don’t expect for a minute that Google will just hand over search data to these losers without sending an army of lawyers to crush them.

        • “If that’s supposed to mean Google, Yahoo, Microsoft, et al. this will turn into a bloodbath.”

          Imagine if word gets out that Google will hand over all your dirty searching habits and secrets to any schmuck lawyer who comes to them with as little as an IP address and a copyright registration.

          This singular event would blow the Copyright Troll machine into national, maybe even worldwide, mainstream news for the duration of the trial. Imagine, the attention of the entire world on this PA Bellwether…. my guess is Malibu Media does not want that kind of attention, given what we think they’re hiding.

          It will also effectively chill Google’s business, as anyone with anything to hide at all (fetishes, infidelity, sexual preferences) will see this news and will stop using the search engine for fear of being outed.

          So yes, it will be a cold day in hell before Google goes down that path willingly.

        • Deposing search engines? “Can I search for porn using your search engine?” haha. What the hell is the point of that? They can depose techs all they want, they won’t get anything usable, but if they issue subpoenas that’ll get very ugly because there is no way search engines will fork over search histories without a fight. Google, Yahoo!, and Microsoft (Bing) have A LOT to lose if they’re seen just forking over search history to civil litigants. They’ll expend however much money they have to in order to keep search histories or anything else requested by trolls because they stand to lose MUCH more than that in revenues, traffic, goodwill (reputation, name), all of which would tank their stock price. If you thought AT&T has heavy artillery, just wait and see what Google brings out if (more likely when) subpoenas for histories are issued.

    • Well it depends on how many does win and in what manner. Remember, piracy is going on, and if some of these does are actually guilty but claiming to be innocent, this will probably be revealed and MM will win a case. However, this does not change the fact that there are false positives, and does not change any other case as far as the doe is concerned; remember, every situation, every doe, and every defense is different.

      But if individuals fought back, then chances are they are actually not actually guilty…. one would hope. If it turns out that MM loses every bellwether case, it’s curtains for them in PA.

      The significance on the national scale is that we’ll be hopefully getting discovery as a result of the trials that will be used in other MM cases across the country to crush their operation.

  13. Love the part about them telling their attorneys to listen to exculpatory evidence. When MM was going after me, they didn’t want to hear any of it. Their line was: It’s your job to find the real infringer. We don’t care if you’re innocent or guilty. We’re suing you because you’re the account holder. If you think your roommate did it, you need to sue him.

  14. “27. We feel people are unlawfully using valuable bandwidth (therefore money) from
    all people who use the Internet for lawful purposes […]”

    How do these people even come up with this shit?

    • After reading the Declaration of Colette Pelessier Field, I’d like to vomit. Is this a declaration or a short story about how they started their business? 42 paragraphs of drivel, reads like a life story for the first half of it. “First we did this. Then we did this. Then we did this….” like I care if she sucked at her RE agent job. She plainly states that Malibu Media is a “small business” yet speaks of millions of dollars plowed back into building the business. I have NEVER seen a “small business” that has plowed millions of dollars back into its operation over a span of three years and I used to prepare tax returns. Most “small business” also do not incorporate into an LLC, C corp, or any other structure that shields from legal liability as well as has tax advantages.

      “31. Brigham and I have repeatedly asked our attorneys to listen to exculpatory
      evidence and be prudent and use caution when pursuing our claims. And, I believe our attorneys
      are doing their best to enforce our copyrights in a lawful and appropriate manner.” Uh, no, you have not because Kotzker was offered Does’ computers on a silver platter and he (you or Brigham) rejected that.

      “37. ….Accordingly, the purpose of these lawsuits is to motivate people to pay for subscriptions by deterring infringement and seek some reasonable compensation for the massive amount of
      infringement of our copyrights.” Alright, Mrs. Pelessier Field, so what you’re saying is that I’m supposed to buy a subscription to the site that I was wrongfully accused of stealing content from? That’s fucking convoluted.

      “40. We are passionate about our work and our business. For us, this is the American
      Dream!” Yes, passionate about making hardcore pornography. Don’t fret, Colette. It’ll soon turn into the American nightmare *GRIN*

  15. Fiore’s Opposition to the Motion to dismiss states (p.12, perhaps mainly authored by his Miami crony):

    “Malibu Media invests significant resources into pursuing all types of anti-piracy enforcement, such as Digital Millennium Copyright Act (“DMCA”) takedown notices and direct efforts aimed at infringing websites.”

    Click to access 65-0-fiore-oppo-mal-media.pdf

    The declaration by Collette Pelissier Field, co-owner of the porn purveyor Malibu Media, submitted via porn purveyor copyright troll lawyer Christopher Fiore, cites takedown requests as evidence that the producers and their troll lawyers are interested in protecting copyright.
    THEIR OWN document, submitted by porn purveyor copyright troll lawyer Christopher Fiore notes the first takedown request was processed on 4/21/12. The graph in this document shows that very large numbers of takedown requests were not made until August of 2012.

    Click to access 65-2-dmca-breakdown-list.pdf

    Malibu Media (represented by Lipscomb, Fiore, Jon A. Hoppe, Jason A. Kotzker, David W. O’Bryan, and others) filed NINETY NINE Federal troll cases, and was included in three Miami Dade mass trolling cases, BEFORE the first takedown request. Also, about 265 federal Malibu trollcases were filed before the spike in the number of takedown notices around August 6, 2012.

    The timing indicates the porn purveyor copyright trolling by the dozens started months BEFORE the first takedown notices. The Malibu/Lipscomb/Fiore realized AFTER the fact that there was no “appearance” of trying to protect copyright apart from trolling. They are using their after the fact attempt to disguise their aim as an argument that they are not disguising their aim. Typical troll misdirection, countered by their own records.

    • Lipscomb never meaningfully addresses the central argument to dismiss: at all times in a lawsuit the plaintiff must have legal standing. Attempting to fix botched copyright assignments mid-suit does not retroactivley confer standing when the lawsuit was filed.

    • Great example of digging deeper into the data! It’s hard to not come to the conclusion that they’re only trying to make it appear like they’re trying to curb piracy AFTER THE FACT instead of actually trying to stop or deter it. Really nice job, doecumb, in showing how many of those lawsuits were filed before most of the large spike in DMCA notices! 🙂

      SJD: On your 12/5 update to the main post above where you placed the links to the opposing motion and Collette’s declaration + exhibits, I’d like to suggest that maybe you can add a short statement like this to the main post below the linked exhibits (with doecumb’s permission, of course): “However, it appears that many of Malibu’s lawsuits (265) were filed BEFORE the large noticeable spike in issued takedown notices in August 2012. Refer to THIS REPLY for more details.”

      hyperlink to THIS REPLY =

      Just a friendly suggestion 😉 I think doecumb’s reply was THAT GOOD and could be used to help debunk/counter/discredit some of Collete’s statements. That is, others (victims, defense attorneys) are more likely to find the data breakdown if it’s briefly highlighted in the main post rather than buried as a reply far down. One of the two current “thumbs up” to the reply is mine, so at least one other person thought it was a really good reply too!

  16. The LLC is so messed up that there is a clear path for defense to go after Brigham Field and Colette Pelissier. There really appears to be no separate entities here and most likely the LLC never paid a single cent for Brigham’s assets. Hope they paid due income taxes on the selling and transfer of significant asset. Break out the popcorn folks!

  17. The audio file for the 11/28 hearing was just uploaded. While the more salient points are mentioned above in the 11/29 update, there were a couple other subtleties I found through listening to the hearing.

    1) Judge Baylson seems very reluctant to the idea that if Malibu cannot join everyone in the swarm then the case should be dismissed, as was brought up in the motion to dismiss by Fiore and Randazza.

    2) It was brought up that all defendants would be filing counterclaims. Lipscomb got very agitated with this, as he said the counterclaims would be ultimately dismissed (very sure of this point) and start bringing up discovery issues as a “fishing expedition” that would not be admissible and would lead nowhere etc…. basically the line of argument Kotzker was using against Fantalis’ counterclaims. Lipscomb brought up that he was required in CO to submit any communications between himself and Malibu Principals, and didn’t want to do that here. Judge Baylson said that was an inappropriate discovery request.

    However, Baylson went on to muse on his philosophy with discovery. Baylson stated that every discovery objection he gets on the phone with counsel almost immediately, and rules on it right then and there. In his words, “I do not allow discovery motions to linger. That’s my universal practice; it’s been like that for 10 years.” This promises to be counter to the CO Fantalis case, where discovery was dragged on and on by constant back and forth between the parties and Judge Hegarty’s very slow reactions.

    Further, Baylson said some words which were probably very hard for Lipscomb to hear:

    “If there are going to be objections to discovery, they’ve got to be specific. To just say something is overbroad and is not likely to lead to admissible evidence doesn’t carry much weight with me. If you object to producing certain documents, I want to know why.”

    If you recall the Fantalis case, Kotzker objected to almost all of Fantalis’ discovery requests on the most vague and ambiguous terms. The most common objection was either the request is too burdensome or overbroad, or not likely to lead to admissible evidence (already in the current hearing Lipscomb made these very remarks before discovery has even been requested). So to hear Baylson say the above words.

    To really drive the point home, Baylson says the following:

    “Let me be as clear about this as I can. … [I]f you want to file an objection that something is burdensome and irrelevant. … [I]n my view those objections are terribly overused, and they’re not very useful, and I really think you need to be specific. … I’m going to require objections to be stated very specifically. That is you estimate…. what is the number of documents that you have? Where are they located? … You really need to identify specifically the problem that you have. … I assume that if it is disputed and I have a hearing that you will be able to present a witness who is going to testify under oath in support of your objection. … So I expect the objections to be specific and genuine and supportable by competent evidence.”

    He finishes on an optimistic note by saying that in Philadelphia they get very few discovery disputes and he expects this case to be no different. I think he’s in for a rude awakening when he realizes how Lipscomb et al. operate when it comes to discovery.

    3) Baylson spends some time talking about what is discoverable and what is not. He goes back to fundamentals when making the distinction”

    “This is a fundamental rule of evidence in my mind. Facts are not privileged. Communications are privileged. So a party cannot refuse or decline to disclose facts merely because the facts were communicated to a lawyer. The privilege protects the communication. The privilege does not protect the facts from discovery.”

    Bad news again for Lipscomb and Malibu Media, as this has been one of their key reasons for denying discovery to Fantalis.

    4) Malibu wants to take 20-40 depositions per defendant of neighbors, people down the street, everyone who ever lived in the house, anyone who ever had permissible access. This seems pretty extreme to me. At least in my case, you’ll be talking to 20-40 people who don’t know I even know my name and who maybe have seen me coming and going from my apartment.

    So on the bright side, Baylson says he won’t deny this outright by enforcing the 10 deposition limit, but does say he will see how the first 10 goes and then grant more if needed. I have a feeling we won’t be seeing this kind of absolute nonsense happening.

    5) Regarding the 30(b)(6) deposition of third parties, Malibu wants to subpoena the following search engines: Google, Ask, Yahoo, and Bing. Lipscomb says “We want to show that each of the defendants is searching for Malibu Media, Bittorrent, X-art”

    I am very skeptical Google is going to willingly go down this path. Remember, the only evidence these plaintiffs have is an IP address. For Google et al. to hand over search data opens a dangerous precedent, wherein the only thing I need to get anyone’s PERSONAL and PRIVATE search data is his/her IP address and a copyright registration. Then they’re free game. This is not the kind of power I want to invest in copyright holders.

    Finally, I’m wondering why Lipscomb is interested if the Defendant is searching for Malibu Media. To date, the ONLY thing associated with the name Malibu Media is lawsuits.

    6) Baylson made passing remarks that the defendants are going to want to depose someone from Malibu and someone from IPP. He said this very nonchalantly as if it were completely obvious, which honestly it is. However, we know that Malibu Media found the idea of deposing Malibu Media principals and IPP very objectionable in the Fantalis case, so it will be interesting to see them argue that.

    7) Perhaps the most interesting bit came up when Baylson clarifies his ideas on settlement in the Bellwether. I think we get a peek behind the curtain about how Baylson feels about these cases.

    “I don’t object to this case being settled. But what I do object to… is the concept that… what appeared at face value that Malibu and other companies similarly situated, are filing these numerous cases all across the country…. and weren’t following through on service of complaints, or not following through on the prosecution of the case, but getting the identities of some of the defendants, and in the meantime judges were working on motions – motions to quash, motions to dismiss etc. – and there seemed to be a practice of getting a couple settlements and dismissing the whole case. I’m not the only judge in this courthouse who thought that raised a lot of questions about strategy, and whether that was an appropriate use of federal court jurisdiction.”

    So that’s Judge Baylson ruminating on the scornful Troll business model we have come to known. He’s aware of it. Other judges are aware of it. But here where it gets very interesting.

    “I’m not opposed to this case being settled. But if it’s done I think it ought to be done in a package kind of way that is public so that other people know what are the terms of the settlement and that judges are aware of what you’re after here.”

    Wow. Public disclosure of the settlement terms for the public and judges to see. Remember when the fire got too hot in Colorado and the case ended up abruptly settled, leaving all of us wondering what happened? Seems like that’s not going to happen this time around.

    On hearing this, Lipscomb goes off with the same sob story we’ve heard about how scam artists Brigham Field and Collette Leah started Malibu Media from the ground up out of a passion for peddling pornography, and are being driven out of business by downloaders, and all they want to do is be fairly compensated for their losses, and the only way to do that is file mass lawsuits across the country. Lipscomb says (as he’s on the phone I can’t hear him that well, so this is my best transcription of his words):

    “What you hear now from judges who have analyzed these issues and really thought about it is not only is there nothing wrong with it and any misconduct in this case, and the ones that come out the other way… they don’t always give Malibu Media the opportunity to submit a declaration about what they’re doing about who they are what their business is, how they started it, how they invest over $2 Million a year creating their works, and how their own customers are writing them every week asking “Why am I paying for this when I can get it for free on torrent sites?” That’s what this is about. That’s what these lawsuits are about.”

    I’d love to see some actual citations on this issue, because in the world we live in, the more scrutiny the troll litigation scheme comes under, the more judges across the country are calling foul. Malibu Media seems to think they can bring out this sob story and everyone will suddenly understand and feel for their plight. How about not spending $2M a year on what amounts to filming people having sex. I’d love to know where that money is going. How about producing a product that people actually want to spend money on… your own fans admit they have no problem not compensating you for your work. Perhaps your problem isn’t piracy… it’s that you think your product is worth more than it actually is, and people just aren’t willing to pay what you’re asking. In the world of tangible goods, you sell nothing and just go out of business. In the digital world, you blame pirates on your woes and sue the profits out of them.

    Anyway, I digress. Baylson’s simple reply to Lipscomb really sums it up perfectly:

    “My response is I’m giving you that chance to prove your case and take discovery, and I intend to be fair to both sides and deal with this on the merits.”

    Bravo Baylson, that’s what we’ve wanted all along: a case to be decided on the merits. I wonder… if all they ever wanted was vindication, why does Malibu Media turn tail and run every time anyone gets close to discovery, as in the Fantalis case? Funny that it takes a judge forcing them to prove their case for them to start professing that’s what they wanted all along.

  18. Golden Eye International Latest !

    After the court of appeal loss for the ORG in UK, Julian Becker is not content with the extra thousands of alleged infringer IP addresses he has now obtained/purchased via O2 etc.
    He now expects to “help” other poor copyright trolls & their puppet masters in the USA too !!

    [quote] “I look forward to travelling to adult conferences in Los Angeles and Vegas in early January to offer Golden Eye’s services to other producers,” he told the BBC. [/quote]

  19. MM has released info about their expert witnesses: The first is named Dave Kleiman:

    Second is named Patrick L. Paige:

    I wonder if it’s the same Patrick L. Paige from Palm Beach as this one:

    Booked for prescription drug possession without a prescription. Whoops.

    • I’m so impressed with his M$ technology experience. So how is he qualified to speak to all the Mac and Unix (most freeware) users. Does his tool work to lock them down as well?

      Can he break into my WFR and then into my neighbor who is “stealing” my Wi-Fi and downloading porn illegally? Can he shut down their Ubuntu computer as well? Do you think my other Mac using neighbor will just blindly enter their admin password when prompted to load his locking tool? Yeah, right!!

      Would I still be implicated if I had a strong Wi-Fi password with all the appropriate security considerations and be able to discern if I granted access or not. Will he know if my neighbor overheard me telling my guest what my password was? Wouldn’t my WFR know that with its limited 5 day log?

      Gee…. whizzbang….I’m so screwed when that letter or phone call comes that I better pay up.

      Or better yet, why don’t you see that I’m living in a rented trailer in a mobile home park with 300 neighbors in range. Go ahead and question all of them and get all their computers to find the ‘wrongdoer.’

      I’m sure that would cost less than $3500. So maybe I should just sue you for being a dirtbag…..

  20. Nice catch as to Lipscomb’s hired guns, I thought he would have been able to retain better “experts” but given the subject of their expected testimony maybe this was the best he could muster. CVs are fucking jokes, any decent attorney is going to shred them like Kleenex.

  21. Some updates from RFC:

    1) On 1/8/2013 MM and Doe #13 entered a strange motion for an order granting a subsequent motion to be filed under seal:

    “Plaintiff, Malibu Media, LLC, and Defendant, John Doe 13 (“Defendant”), move for the
    entry of an order allowing the parties to file under seal another Joint Motion, seeking among
    other things, an evidentiary hearing, and state that good cause exists to grant this motion as will
    be made clear upon the Court’s review of the Joint Motion, which will be immediately filed upon
    the Court granting the instant motion.”

    A hearing on this strange, cryptic motion has been scheduled for 1/16/2013 at 10:00 AM. I’m sue the judge wants to figure out WTF this is about.

    2) On 1/9/2013 Does #1 and #14 filed Answer and Counterclaims.

    Counterclaims are:

    1. Abuse of Process
    2. Intentional Infliction of Emotional Distress
    3. Invasion of Privacy

    Asking for damages of $150,000 for each count.

    3) On 1/9/2013 M. Randazza’s motion to appear pro hac vice was granted. No surprise there.

    4) On 1/10/2013 MM filed a motion for order to show cause why default judgment should not be entered against Doe #6. On 1/11/2013 John Doe #6 answered the amended complaint. No easy judgment this time.

    Not too much so far, as we’re only a couple weeks out from the Holiday break, but things are heating up again. I’m especially curious about the hearing scheduled for tomorrow (1/16/2013) on the cryptic joint motion by plaintiff and defendant.

  22. Raul posted the link to the audio file of the hearing today from the Bellweather case. I couldn’t hear anyone other than the judge.

    Click to access gov.uscourts.paed.461508.69.0.pdf

    But what it seems like is that there’s a motion to file some of the stuff under seal and have some sort of evidentiary hearing for Rushie’s client.

    The judge said something about it reminding him of a criminal case with multiple defendants where one of them decides to cooperate with the prosecution.

    I can’t make much of it out on the really crappy earphones I have on now, but if I get a chance to listen to it when I get home I’ll update/correct what I think I heard.

    If not, I’m sure Raul or SJD will have something to say about it.

  23. Thanks for the audio file. It appear only Lipscomb talk during the hearing, but he is calling in and can’t seem to hear anything from the audio file, and other than acknowledge their present, both Fiore and Rushie do not say anything else.

    I think the reference to criminal case came from the fact that defendant want a lesser “punishment” for cooperating with the other side? hence the comparison of a plea bargain in the criminal case? I think the defendant want it to be file under seal and was hoping that this material will be under seal forever, although Baylson does not give that assurance, and said he rarely does that in civil cases.

    Hopefully someone with more legal knowledge can comment a little about this strange hearing.

    • Apparently one of the defendants, Doe #13, admitted the downloading, and was working out a settlement with MM. Wonder how this would do for the bellwether trial?

      • interesting. I read from comments above that someone is working with the trolls, but its not like they were swaping copies on vhs tapes.

  24. Just notice Comcast file a motion to quash regarding the new request for information regarding the remaining defendants in this case. What I find interesting is that Comcast request setting an amount from the trolls to be reimbursed if the subpoenas are not quashed. Wonder how the trolls are going to react to that.

  25. Any idea how to ask a judge is a different state (but basically the same case) to wait for an outcome of this PA case before proceeding with allowing the ISP to release doe names?

  26. Raul posted this on twitter:

    Comcast is fighting new subpoenas in the bellwether case. The subpoenas seek:

    “personally identifiable information (“PII”) relating to (among other things) any DMCA record(s)
    Comcast has for the identified subscribers, the identified subscribers’ internet bandwidth usage,
    specific video programming and/or other content watched or accessed by the subscribers, and
    bills and invoices relating to use of the service, which in turn would reveal viewing habits,
    service selections, costs paid, and other sensitive information. Moreover, some of the documents sought concern Comcast’s confidential and proprietary information on the operation of Comcast’s network, while others refer to subscriber service usage that Comcast does not track or monitor.”

    What’s the chance the court allows this travesty to actually occur and denies comcast’s motion to quash?

    • Love footnote 2:

      “2 There are several confusing elements that call into question the validity of the Subpoenas
      altogether. First, the two 2088 Subpoenas instruct Comcast to designate the person(s) “who are
      the most knowledgeable about the subject matter categories set forth in Exhibit A,” though there
      is no “Exhibit A” appended to either of the two Subpoenas that Comcast received in that case.
      There are, as identified elsewhere in those Subpoenas, “Schedules A and B,” but no “Exhibit A.”
      Moreover, the Schedule A attached to the Subpoenas does not set forth any subject matter
      categories, but rather identifies documents requested for production. Conversely, Schedule B
      sets forth subject matter categories. Second, the three Subpoenas’ Schedules A and B refer to
      “Verizon Internet Services” and to documents pertaining to Verizon (and, thus, not to Comcast).
      Of course, Comcast would not have any documents relating to Verizon or its Internet Services,
      nor could there be any person(s) at Comcast knowledgeable about such Verizon documents.”

      • The objected to subpoenas illustrate just how flimsy the evidence is of just being able to link an IP address to an alleged infringement that they have to fish around hoping to find something/anything to bolster their case.

  27. what i find concerning, however, is they’ve sent a similar demand to verizon as, if you read what comcast was sent, the original demand was drawn up for verizon. so, i wonder if verizon will just roll over and offer up these subscriber details. if so, this will be one more reason to switch to comcast.

    • Too much stuff, too soon and too overreaching. I would bet Verizon is awaiting a motion to compel from Fiore/Lipscomb before filing their objections.

      • Verizon is fighting MM in Texas. That much I know. I THINK I read that it was about overreaching and over broad subpoenas. I wouldn’t be surprised if MM just didn’t copy/paste the documents they used in Texas and forgot to change all of the names when submitting it to comcast. That type of shit by these fraudsters is not unheard of.

  28. Just notice the declaration by Doe #6 in the trial, admitting that one of the family member confessed doing the downloading, and agrees to pay$10,000 (!)

      • Reading the doc a family member admitted later to having done it. I wonder how true that actually is as they have been conducting “discovery” and well we know how trolls like to get words they can twist.

      • I find it highly suspect that someone would settle AND claim guilt. The rational person in me sees this as a double win for the trolls. one, they get a nice chunk of change. two, they will feel more emboldened and will most certainly use this does admission of guilt to say “well, judge, we were right about this does guilt. we are right about the guilt of the others.”

        the conspiracy theorist in me thinks they approached one of the does offering to cut them loose as long as they publicly admitted guilt so they could use it to support their case.

        • Very plausible: the idea is on the surface, Lipscomb and pornographers have absolutely no moral barriers, and allegedly Randazza pulled this trick in the past (ohai TAC).

  29. Actually he wasn’t admitting guilt. Someone else was guilty. MM was indeed suing the wrong person. The fact that the INNOCENT doe paid off the tell to protect a family member from the trolls doesn’t change the fact that they were suing the wrong person. Just because I donated towards Bill Clinton’s legal fees doesn’t make me an adulterer.

    • Yes, I think this is pretty key. What we as a community have been saying ALL ALONG is that an IP address cannot identify an infringer, and equating IP address with cable subscriber leads to false accusations.

      At no point have we as a community claimed that IP theft isn’t happening. It is, and X-art is right in wanting to stop it. But they cannot do so with their shotgun-style litigation approach. THAT is why we call them copyright trolls instead of IP owners looking to protect their rights.

      MM found an infringer and got a settlement. Good for them. But this goes far more to proving our point than I think they expect.

  30. Judge Baylson order that the fax document from Doe #6 sealed, but it had already recapped the day after it appeared. I wonder if that should have originally been filed under seal but Fiore did a sloppy job (like the other troll in the other state).

    I do wonder what’s going to happen now that it’s under sealed, but at the same time already in the public domain, does that mean it’s ok to discuss it, but not presentable in other filings?

    • It is not illegal to discuss it, but out of courtesy to a good Doe defender Charlie Thomas (he was really pissed off and depressed by this event) and the extortion victim, Doe #6, I would avoid discussing the information that was the reason of the sealing. Not that it will magically make this document disappear, but let’s not pour gas in trolls’ evil campfire.

      I actually expected that this fax would not be sealed, but redacted instead and even planned to feature it in a post (redacted of course, even before the expected official redacted version), now I’m in doubt. There are so many unanswered questions and emotions… I’ll try to refrain from writing on this topic at least for the time being, but if trolls try to leverage this shameful act of extortion and present it as as a victory, I’ll break my silence and I will be furious.

  31. Just saw the new documents for this case. A quick scan over the troll’s reply to ISP show that their main argument remain that subscriber = infringers (defendants), since it seems to “proof” certain IP address activities, and not certain person’s action, which might be because of someone who hack into the network or a neighbor…

    Not too sure how legal court documents suppose to be written, but seem kind of sloppy to me that Doe #6 remain as a defendant in the latest document file on 2/15/13 when he should already been dismissed.

  32. While Prenda is getting into big trouble on the west coast, there seem to be some development too on the Bellwether trial. Looking at the latest motion to request to postpone the actual trial date, it seem like some kind of discovery been taking places, including some hard drives. However, from the motion it only mentions what the trolls been asking and getting, and no much information regarding what the defendants been requesting or getting.

    Interesting to note that Lipscomb’s “experts” are now examining IPP’s software and method, and will prepare a report later on.

    A telephone conference been schedule, I would think Baylson want to check why the need to postpone the trial, since I think he intend to resolve this issue as quickly as possible, and it just happen to be on March 11 too!

  33. Raul posted this on Twitter earlier.

    I had a couple thoughts.

    One of the recurring themes in the Doe mantra is that the lawyers for the plaintiff will fight tooth and nail to avoid going to court. That their evidence is weak. That they really have no faith in their case.

    However, even though two of the does actually voluntarily dismissed their counter claims and affirmative defenses, Malibu has not yet dismissed any of the cases.

    Are they even able to dismiss the cases? I realize they are backed into a corner with the judge, but if they do manage to lose these cases they will be in a world of hurt in the future.

    Why haven’t they dismissed the does without counter claims and going through with discovery? Are they confident they have decent evidence? Is it hubris? Do they have no other choice?

    Combining this with the rash of single-doe filings, I have to wonder if either Malibu Media/Xart is changing the game and going to prosecute for real, or if its false bravado.

  34. While all the focus right now is on the west coast and the count down for the demise of Prenda trolls, it appears there are some progress going on in the bellwether trial on the east coast. From rfcexpress and pacer, it seems some depositions had taken place for the defendants, but not sure if any depositions had taken place regarding troll’s IP collecting technique or relationship of the law firms etc by the defendants’ lawyers. From some of the document, in my opinion it doesn’t look that good for the defendants at this stage…

    It does appear that Lipscomb isn’t s as reckless as Steele in creating fake companies/signature etc and a big mess for himself, and as Cashman mention in one of his post, I think malibu media/lipscomb is changing their technique, instead of suing 10-20 or more John Does and trying to get $3000 from each (or more), they are now narrowing and suing single doe, but asking $10,000 (or more) from that one person. However, the question still remain on how they collect the IPs and what type of “proof” are they using to support their recent claim of other infringement of other titles. Hopefully those will be reveal when we get some info from the deposition of their “experts”…

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