Guardaley | X-Art

Malibu Media v. Doe (12-cv-00886): an update

Second Amended Answer; discovery sabotage; hearing on the Motion to Compel

If you follow the news, you certainly know that the people of Colorado have just voted in favor of legalizing marijuana for recreational use. That may help the number one Colorado copyright troll Jason Aaron Kotzker in more than one way:

  1. He finally can legally possess the substance that can boost thinking outside the box and help generating new ideas how to dodge discovery: Kotzker’s outright denial has become boring.
  2. After the hearing on Fantalis’s Motion to Compel this past Monday, Kotzker definitely needs some sweet smoke in order to avoid extra expense on toilet paper (and extra pants).

I’ll talk about the hearing in a while, but first let’s recap what has happened on this case since the last time I posted about it.

Second Amended Answer and Counterclaim

The most important event was the Second Answer to Complaint and Counterclaim, which was filed on 10/23.

Originally Fantalis filed the first version of the Second Answer and Counterclaim earlier in August with some procedural violations (without first filing a motion to obtain court’s permission). Kotzker succeeded in striking this first version (actually, it was a stipulation).

Yet it was a Pyrrhic victory for Kotzker: Fantalis later repeated the procedure, following the rules this time: got judge’s permission and filed a much better document given extra time and a never-ending flow of new information and ideas.

You can skim over other filings, but without reading the Second Answer and Counterclaim you cannot be fully engaged in the discussions. In addition, if you are a defendant in any other copyright shakedown lawsuit, this document is your Holy Book: it lists most of the basic defense ideas, and is written in English, not Legalese. Finally, if you are a casual web surfer, who stumbled upon this blog for the first time, you will find a near perfect explanation of the copyright trolling scam anatomy. While this site (as well as Rob Cashman’s and DieTrollDie’s ones) has a larger mass of relevant information, this information is dispersed over posts, pages and comments. The FAQ was designed to explain troll’s kitchen, but it is admittedly outdated. Given that, I cannot imagine a better “crash course about copyright trolling” than this document:

Unfortunately, because Fantalis is a pro se defendant, he is not allowed to file documents electronically, and therefore all his masterpieces are printed-mailed-scanned, i.e. they are not selectable/copy-pasteable/searchable. I may try to run some through OCR software: I feel a duty to preserve some of these documents for posterity (whatever posterity is) 🙂
Update: I replaced the embedded document with an OCR’d one, thanks to a good guy who emailed me offering his help.

On 11/02 Kotzker/Lipscomb filed an opposition to this document.

Trolls continue sabotaging discovery

During the phone conference that Judge Baylson had over the Bellwether trial in Pennsylvania, Keith Lipscomb (Kotzker’s “boss” and the extortion scheme mastermind) mentioned this lawsuit as one in a “very advanced stage.” In the post about that conference, I joked that Lipscomb must have meant an advanced stage of discovery dodging. Funny that at that time I did not know the facts described in the following paragraphs yet!

If you look at the barrage of motions, replies, and objections filed at the end of October/ beginning of November, you will understand the full extent of trolls’ despair: they do everything thinkable and unthinkable to avoid answering direct questions. No one is surprised: the truth may be too damning and is capable of not only torpedoing this particular case, but also sinking the entire USS Lipscomb.

In the previous post on this topic, I mentioned Fantalis’s 10/11 Motion to Compel Plaintiff to Produce Answers to Discovery. The hearing was set for 11/5 (this past Monday). A high-frequency sabotage ensued after that:

On 10/29 Kotzker attempted to delay the procedure and filed his Motion to Modify Schedule (was denied on 11/05).

On 11/02 Kotzker filed for an extension to file his Opposition to the Motion to Compel. Fantalis opposed). Nonetheless, Plainfiff’s opposition was granted on 11/05 during the hearing. I suggest reading the Fantalis’s reply: it called out Kotzker on his obvious sabotage. Fantalis arrived at a simple conclusion that everyone here knows already, he just put it nicely:

It has been Defendant’s position since the very beginning that Plaintiff has neither the desire nor the capability to litigate the case against the Defendant or any of the thousands of other defendants Plaintiff has sued around the country.

On 11/2 Kotzker filed for a stay of the hearing: the judge denied it as an obvious last-second ploy to avoid a discovery hearing. (Fantalis’s opposition followed.)

11/04 plaintiff’s Motion to Stay Discovery Pending Resolution of Plaintiff’s Motion to Dismiss the Second Amended Counterclaim was granted during the hearing (see the notes below).

On 11/5 Kotzker filed a Motion to Strike Affirmative Defenses. This was clearly a move to try to substantially limit discovery. As discovery may be taken on claims as well as defense, Malibu Media wants to limit Fantalis’s affirmative defense, and hence the discovery associated with it. A really desperate move, and of course Fantalis is expected to file an opposition.

Monday Hearing: good news overall

As I noted earlier, during this hearing, plaintiff’s Motion for an Extension to File his Opposition to Motion to Compel was granted (but read further to understand that it was not that important).

Another motion that the judge has granted was Kotzker’s Motion to Stay Discovery — pending resolution of Malibu’s Motion to Dismiss. It is not an extraordinary ruling, as there is a lot of case law that says that this is an acceptable arrangement. However, the judge only partially granted this motion, and then he went thought each request for discovery and told the plaintiff exactly what it had to produce or answer. That is why the meeting lasted for almost 4 hours.

At this moment you may start thinking that Kotzker had an upper hand, but do not be so quick: the real fun has just started. The following micro-events shaped the hearing, and many things went downhill for the trolls from here:

  • The Judge got Kotzker to admit “on the record” that an IP address does not equal a human.
  • Fantalis brought to the Court’s attention that Koztker had missed a ton of deadlines. In particular, Fantalis contested that some of the “handful” of documents turned over by Malibu Media should not have been marked confidential, and Kotzker has still failed to respond, even though the protective order in the case sets a hard deadline. The judge ordered Kotzker to respond by Wednesday or he would entertain a motion to dismiss the case for failure to prosecute. (This is an extreme remedy, especially when Kotzker is in Court for 4 hours and the judge still says he is not prosecuting the case — any attorney in his place would be sweating out gallons hearing that.) When the judge pressed Kotzker about missing so many deadlines, the troll said he would not take on any more cases.
  • The judge ordered the fee agreement between IPP (a German “forensic” company that harvests IP addresses from Bittorent trackers using super-secret software) and Malibu to be turned over to Fantalis. He said if it is a contingency agreement, then there will be a problem. It is against the standards of professional conduct to share a contingency fee with anyone apart from the attorney or lawfirm. (This could get ugly.)
  • The judge said that Kotzker’s and Lipscomb’s fee agreements with each other and Malibu Media were likely privileged, but the judge was suspicious enough that he ordered them sent to his personal chamber for review!!! This is huge. I do not remember the exact numbers, but anything past a 30% contingency is considered outside the norm, and anything approaching 40-50% is a big problem. If it is really a 9:1 contingency, it would not only be obviously unethical (and the judge would report it to the state bar), but it could actually be illegal.
  • Fantalis noted that some of Malibu Media’s responses, signed and attested to by Malibu Media’s co-owner Colette Leah appeared to be false (who knows if she ever really saw them: according to the comment she once left on this forum, she is just a brainless puppet in Lipscomb’s hands). The judge indicated that if defendant could substantiate that the responses were false (which he can and is in the process of doing) then Colette Leah could be brought in on potential perjury charges. At that point, Malibu owners are going to be put under oath, and the proverbial aromatic substance will hit the fan!
  • The Court directly told Jason Kotzker that if the jury found any of the “works” to be obscene, these “works” would not be subject to copyright protection. WOW. Marc Randazza must be saying some words at this moment: those words that usually cause 99% of normal people instinctively cover their ears.
  • And the icing on the cake: Fantalis has offered up his computers to Koztker and the judge “Maness style.” Malibu Media failed to take Fantalis up on his offer (surprise!).


At the time of the writing of this post I was aware about Fantalis’s surreply calling out a trolls’ major fallacy: advocating joinder during the mass phase, but shying away from it when it comes to derivative individual lawsuits. I did not want to overburden this post and planned an update. Fortunately, one of the most active and articulate regulars wrote a nice analysis in the comments, which I converted to a post:

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35 responses to ‘Malibu Media v. Doe (12-cv-00886): an update

  1. I posted this in the other thread, but I went through and cross referenced the numbers with the actual discovery requests. There are some big ones in there. So here’s what the Plaintiff needs to produce by Nov 26, or face dismissal:

    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).

    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… they won’t even admit the pornographic works are pornographic unless the judge orders them.

    As for denying obviously true statements… damn straight they did. They denied the authenticity of a published scholarly article hosted on university servers. How much more obstinate can you get than that?

    Also they say the false positive rate is 0%, but not according to the Baumgarten Brandt documents, and not even according to Kotzker himself, who stated they sometimes hit coffee shops. Is the owner of Starbucks downloading all this illegal material? No? Then that’s a false positive, where infringer != account owner.

  2. seems like a ton of stuff they have to produce, i wouldnt want to be in the plaintiffs shoes right now. if it gets dismissed what happens next?

    • I expect we’d see motions for sanctions and motions for fees from Fantalis, and Fantalis’ counterclaims are still on the table.

      Oh yeah, and not to mention the complete destruction of Malibu Media’s operations in Colorado, if not the country. Remember when Judge’s started to notice that plaintiffs were not naming defendants? Plaintiffs started naming a few token defendants right quick. Then we started to say these cases are being filed, but aren’t actually being litigated. Plaintiffs swear they’re going to litigate these cases, and they have every intention to. Then they point to Colorado and say “See? Look, we’re going through with it here.”

      If this case gets dismissed for failure to prosecute, these plaintiffs can no longer claim they’re making good faith efforts to prosecute. Here, they’ve been given every chance to move this case forward, and at every chance Kotzker has dug in his heels. If this case is dismissed, how could any judge in his right mind allow Malibu Media in his court room, when all he can expect is these kind of deceitful, underhanded proceedings?

  3. Here’s another false statement by Colette Leah:

    “If an individual spoofed Defendant’s IP address, it would appear to the technology used by IPP Ltd., as if that individual was accessing the Internet through Defendant’s DSL Modem – Denied”

    This is true by definition; it’s the whole idea behind spoofing.

    “There is no legal duty that requires an individual to maintain a secure wireless network – Denied”

    Why don’t we ask Marc Randazza and what the judges thought of his negligence theory ( with respect to Josh Hatfield, and David Mastron, Cary Tabora? There is NO LEGAL DUTY that requires an individual to maintain a secure wireless network.

  4. From rfcexpress, it looks like the Judge has issued an order on the motion to compel…don’t know what it says though.

    • Are you talking about 109? This is the order that is embedded above. As I wrote in the other thread,

      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 That’s why I put this doc to Scribd.

      There is another one, 108, denying Fantalis’s surreply (regarding default): I’m aware of it, but deliberately did not mention: surreply uses interesting arguments and it worth discussing them, but this post is already overburdened with links to documents.

  5. Not subject to copyright protection? Fantastic. While one can’t help but sympathise with anyone about to lose their business, pornographers in their reckless crusade have effectively shot themselves in the foot and are at very real risk of losing the one thing they claim is their leverage.

    Nice going, Colette.

    • I also find it hilarious he told the judge he wasn’t taking on any new cases due to workload causing missed deadlines. New sources of revenue have stopped for the time being and he is having to fight off defendants on multiple fronts (two other defendants filed motions to dismiss). This d-bag MIGHT think twice abut staying in the trolling business going forward.

      • I think this is the biggest thing to come from the hearing actually. Local Troll Counsel was obviously sold on the idea that these cases would be easy money. Lipscomb, Steele, etc. probably pitched to them that all they would have to do was file a cookie cutter complaint, respond to some MTQ and MTD, send out some subpoenas, and watch the checks come in.

        Despite how much they protest otherwise, none of these operations are set up to litigate every single one of the hundreds of lawsuits they file. In Kotzker’s case, he keeps filing cases, and more and more are fighting back. He can’t even handle the one or two cases in his district that are fighting.

        Then we have the Bellwether in PA, bringing those cases to a halt. And finally we have AF Holdings crying that if they have to put up bond money they won’t be able to afford to litigate hundreds of cases at a time…. well YEAH! That’s the point!

        All of these sources of resistance are driving down profits. Now instead of filing a cookie cutter complaints they’re forced into actual costly legal proceedings with discovery, depositions, and eventually *gasp!* actual jury trials they demanded in the first place.

        We’ve had some small victories around the country so far with joinder, and negligence theories… but making the business unprofitable is ultimately how copyright trolling will end.

  6. Fantastic Fantalis, that’s what we shall call ye. Harbinger of Justice, destroyer of trolls, your heroism is due a reward worthy of your efforts. Perhaps a cool million will do?

      • I thought I recapped them yesterday… don’t know why they’re not showing up. They’re very short: Kotzker is just dropping the contributory infringement claim (110), and asserts that he is waiving actual damages for statutory damages (111). He told Fantalis he would do this many months ago, so it’s long overdue.

        The contributory infringement angle has always been very suspect as a legal theory… almost as tenuous as Randazza’s negligence theory. I think Kotzker is trying to drop as many claims as possible (both his and Fatnalis’) because as his logic goes, the only surviving claim will be direct infringement which (he hopes) will limit the discovery he needs to provide (again according to hm.)

        • Makes sense. If you take actual damages out of the equation, finances, profits, etc. no longer come into play so why would discovery be relevant. Just shows how much of a pu$$y Kotzker and “Lipscum” are For all their bravado about wanting to try the case on its merits, they’re throwing out everything they can to prevent discovery. What a couple of cowards.

  7. Really dumb question, but I haven’t been able to find the info backtracking through all the info available.

    If Kotzker et al. really don’t want discovery and whatnot, why didn’t they just dismiss the case against Fantalis? Can they not because of the counter claims?

  8. Some updates:

    On 11/7 Fantalis filed a motion for leave to file surreply to Kotzker’s objection to Fantalis’ objection to the entry of Default Judgment against Bruce Dunn (whew… the back and forth is really getting extreme). The motion was denied on at technicality:

    “Defendant Fantalis’ Motion for Leave to File Surreply [filed November 5, 2012; docket

    #107] is denied without prejudice for failure to comply with D.C. Colo. LCivR 7.1A, which states,

    The court will not consider any motion, other than a motion under Fed. R. Civ. P. 12 or 56, unless counsel for the moving party or a pro se party, before filing the motion, has conferred or made reasonable, good-faith efforts to confer with opposing counsel or a pro se party to resolve the disputed matter. The moving party shall state in the motion, or in a certificate attached to the motion, the specific efforts to comply with this rule.”

    It looks like Fantalis has all but given up on trying to confer with Kotzker before filing. So Fantalis went and conferred with Kotzker, and needless to say Kotzker objected. So he refiled the motion having fulfilled the technicality:

    On to the motion:

    First Just a brief note, I’m not sure what’s up with RECAP, but nothing has been added since Doc 106. I’ve recapped at least 3 docs since then, including this one (112) and it’s not showing up. So if SJD wants this one, let me know.

    This one is a real beauty. Fantalis is basically arguing 3 points:

    1) Kotzker cannot argue that defendants are jointly and severally liable (JSL) in the complaint to minimize filing costs, and then later turn around and argue the defendants are independent from one another to maximize damages.
    2) Plaintiff is dropping charges and changing theories midstream to prejudice discovery proceedings
    3) Plaintiff cannot collect twice on recovery

    1: So I know we all love to argue that swarm theory of joinder is bogus, and I still agree with this because in many cases it kills the troll business model before it begins: suing individuals one by one is not a profitable business model.

    However, it many districts like the theory, and many subpoenas are being granted under it. So it seems counterintuitive that in fact, the swarm theory of joinder has some benefits if a case has proceeds past the initial ex parte discovery phase that Fantalis is now trying to take advantage of, and some downsides Kotzker is trying to avoid.

    Fantalis is trying to argue that Kotzker cannot argue that defendants are JSL in the complaint, and then turn around and argue they are not at the current stage. Plaintiff benefitted in those early stages because it allowed them to file a single complaint against 30 Does, and get all their information with one subpoena. Now, they want to argue the opposite, because if they are JSL, then Malibu Media can only collect $150,000 between the 30 Does, instead of $150,000 from each.

    “In reliance on these sworn statements (on JSL), the Court permitted Plaintiff to proceed with filing a single case against 30 anonymous defendants and granted Plaintiff’s request for expedited discovery to uncover their personal identifying information… However, Plaintiff’s interests have now changed. Plaintiff has achieved its goal: it obtained their personal identifying information of the Does and has obtained settlements from many of them. It got a settlement from Deus and a default against Dunn. Now Plaintiff simply seeks to maximize the amount it can collect from this lawsuit with as little public exposure as possible. Therefore, it is dropping any claims that would require it to reveal its own financial interests – hence, dropping its claim for actual damages – and is dropping the claim for contributory infringement because in that way, it can attempt to collect maximum statutory damages separately from each individual infringer.”

    Fantalis argue that plaintiff is estopped (a tool courts invoke to prevent the “improper use of judicial machinery”) from abandoning its previous allegations, on the grounds that it cannot hold two opposing points of view especially when the previous point of view was accepted by the court (they granted ex parte discovery based on swarm theory of joinder), and would prejudice the other party.

    2: So as many of us suspected, Kotzker is now shifting tactics to avoid discovery and collect maximum damages for the Malibu Media. The charge dropped was contributory infringement, and Kotzker is now electing to take only statutory damages. This is important because

    “[B]y dropping the claim of contributory liability and demand for actual damages, Plaintiff has avoided providing discovery in response to any questions that might conceivably touch on anything but direct infringement and statutory damages until a decision is made on Plaintiff’s motion to dismiss. Moreover, Plaintiff seeks to gain an unfair advantage by avoiding this claim of contributory liability: namely, it seeks to avoid having to engage in a hearing on the issues of damages.”

    This is very important, because as we learned from Troll Nicoletti, and as we expected all along, Malibu Media is just a shell corporation whose sole existence is contract works from Brigham Field and then sue individuals who download them. Ultimately, Brigham Field and other stakeholders in Malibu Media do not want to be exposed to liability through these lawsuits. Thus, they hope to limit and confound discovery of the financial workings of Malibu Media.

    3: Finally, Fantalis argues that Malibu Media is not allowed to collect twice for the same infringement. The default on Bruce Dunn was ordered at $2,500 in statutory damages + $739.26 in attorney’s fees, for a total of $3,239.26 (which is funny on 2 counts. 1) it’s significantly less than the $30,000 they were requesting and 2) it’s less than the typical $3400 Prenda asks for settlement. I believe Malibu Media settles for between $7000 and $10000 for these multiple infringement suits. In this case, not even answering the summons is more economical than settling).

    Fantalis also counts Dues in this action, and 8 other Does who settled in the previous action. Thus Malibu Media has recovered at least nine separate settlements for the same alleged act of infringement. Again they argued originally that the defendants were JSL. Accordingly:

    “Copyright infringement is in the nature of a tort, for which all who participate in the infringement are jointly and severally liable… under elementary principles of tort law a plaintiff is entitled to only one recovery for a wrong. Payments made in partial satisfaction of a claim are credited against the remaining liability.”

    Thus Malibu Media can only recover a TOTAL of $150,000 for the infringement from ALL Does combined if they are JSL. Now Kotzker is trying to pivot and say “No wait… these were separate acts, and we want $150,000 from each individual” This position also prevents Kotzker from having to divulge settlement info related to the infringement to the court.

    Further, it seems to me that if they want to argue that ALL members of the swarm FOR ALL TIME are JSL (as they argue in their complaints), settlements from ANY suit across the country for the infringement of a given film should be credited toward the same $150k total, not just the current action. But that is my own conjecture.

    Finally, I leave you with this passage from the motion, which sums the whole piece up nicely:

    “As noted above, the allegations of Plaintiff’s Complaints against defendant… were very clear: these defendants are jointly and severally liable; they participated together in one massive, collective activity; and they could not possibly have acted alone because this was such a huge undertaking – in fact, the very nature of the technology requires concerted action. Thus, for Plaintiff now to say that each act of infringement was discrete and unique is not only disingenuous, it gives the lie to the entire foundation of Plaintiff’s cases across the nation. Either the defendants worked together or they didn’t. Either they participated in the BitTorrent or they didn’t. This is a question of fact without which Plaintiff cannot succeed in its case: if Plaintiff wants to concede this issue, it should be required to dismiss its entire case against Defendant. The fact that Dues settled and Dunn defaulted does not change Plaintiff’s burden on this score.”

    So what’s it going to be Kotzker? Joinder or no Joinder? Can’t have both.

  9. Above, you said “The Judge got Kotzker to admit “on the record” that an IP address does not equal a human.” Where can I find this on PACER, or whatever site may have it?

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