Guardaley | X-Art

Malibu Media’s massive fraud: an update

By Raul
The following was meant to be an update to the Saturday’s post “Malibu Media’s massive fraud“, but given the update’s size, I thought it would be more reasonable to make a separate post, especially given that the subject is really “a bomb.”

On November 12, 2012 defense counsel, Jeffrey Thennisch, delivered to the doorstep of troll Paul Nicoletti a thermonuclear device cleverly disguised as a motion to dismiss Malibu Media’s complaint (embedded below) coupled with simultaneous applications to the Copyright Office to cancel the copyright registrations of Malibu Media to the 15 registrations at issue in this lawsuit. The motion itself is highly legalistic and technical but it essentially boils down to the fact that Malibu Media has absolutely no legal right to sue for copyright infringement in this lawsuit as its copyright registrations are defective/fraudulent or in Thennisch’s summation:

Brigham FieldBrigham Field

…in response to the standing issue raised by the Doe Defendants, the named Plaintiff, realizing the “defect” in the specific Copyright Registrations asserted in this action on June 14, 2012, filed Supplemental Registration Forms CA for “the Works” on September 13, 2012 (see Exhibit C) all based upon a subsequent assignment which now alleges that “the Works” were, in fact, created by a current non-party individual named Brigham Field and transferred through an assignment of copyright to Malibu Media, LLC after the company was formed. Essentially, the named Plaintiff’s response to the standing issue raised by the Doe Defendants was to create and file an “after-the-fact” assignment document before the U.S. Copyright Office in the hopes of recreating standing. However, standing must exist when this action was commenced. Here, the September 13, 2012 document and assignment (see Exhibit 2:12-cv-12586-PJD-MJH Doc # 41 Filed 11/12/12 Pg 7 of 23 Pg ID 499 2D) from Brigham Field to Malibu Media LLC assigns the rights, title and interest in “the works” but does not specifically include any right(s) to sue for past infringements. This is now fatal.

Thennisch further argues that even if this lawsuit is not dismissed it should be put on hold until the Copyright Office can evaluate the validity of Malibu Media’s copyright registrations while invoking the notorious Righthaven litigation:

Perhaps more simply stated, the named Plaintiff, Malibu Media, LLC, filed this case on June 14, 2012 bringing multiple copyright infringement counts against at least thirteen (13) different parties without ever disclosing the fact that the non-party individual, Brigham Field, who we are now told is/was the “real” owner of the asserted rights — “may” have simply assigned such rights to Malibu Media, LLC. This is what the Plaintiff’s own September 13, 2012 documents at Exhibit D clearly state. However, Exhibit D does not include any attempt by Mr. Field to assign or transfer the right to bring such copyright infringement actions from himself, the individual, to Malibu Media, LLC or any other entity. In short, the named Plaintiff does not function as the legal or beneficial owner of any of the asserted rights and simply lacks the legal ability to bring the present claims which Malibu Media, LLC — not Brigham Field — filed before this Court on June 14, 2012. Most notably, “the right to sue for past infringement can be transferred to another party so long as it is expressly included in the assignment along with an exclusive right. Righthaven LLC v. Hoehn, 792 F.Supp.2d 1138 (D.Nev.2011) citing Silvers, 402 F.3d at 889-90. Nothing the Plaintiff has presented includes such a right.

Turning to the requests to cancel Malibu Media’s copyright registrations, there are a lot of fun quotes but this is my favorite is point 1, in which Thennisch points out that the registrations are a “canard” as it is a “factual, legal and metaphysical impossibility” for Malibu Media to be an “employer for hire”. Likewise, Thennisch points out that:

…Malibu Media has filed multiple copyright infringement proceedings throughout the United States against viewers of this “adult” content, as John Doe defendants, to extract settlements based upon issued copyright registrations which defy cognitive comprehension of the Julian calendar. In short, and with great respect, the Library of Congress is being used and pandered as a tool to effectuate the business plan of a pornogragher… the U.S. Constitution deserves better than this.

 

Once Nicoletti clambers out of his bomb shelter we will see how he responds to this unprecedented onslaught.

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Discussion

8 responses to ‘Malibu Media’s massive fraud: an update

  1. Anyone with this case here?

    Celestial Inc. v. Does 1-252

    I received a letter from this a long while back, well actually comcast delivered it to me saying they (celestial) would get my name and info from comcast if i didn’t respond by june 1 2012. I didn’t do anything, now recently I get the same letter saying I need to respond by dec 5th 2012.

    Why didn’t they act after the first notice, it’s like I’m getting a second chance now. I still won’t do anything as they are probably bluffing.

    They are in Florida and I am in california.

  2. I am of the opinion that the patent and copyright system is in complete disrepair, and needs a major overhaul that takes into account ant reassesses the real purpose of copyright and patent protection. I myself own several copyrights and patents, but I would never in my right mind use the patent and copyright system to protect my work as Copyright Trolls and Patent Trolls use it.

    We are all accutely aware of the pornography industry’s misuse, but just look at Apple with their patent on rectangular shaped tablets, or consider the obscenely long terms for patent protection extending well past the authors lifespan.

    Remember that the original purpose of copyright protection is to foster the arts. This is an important cause, as it advances society in all forms. But porn is not art. No one needs incentives to film people having sex. People have sex all the time, and no one even pays them to do it! People have sex and film it all the time for no money either! There is no reason at all we as a society need to incentive people having sex, because without the incentives, they’re going to do it and probably at the same rate.

    Sure, scumbags won’t be able to make money off it…. but I don’t exactly see the downside.

    From the outset of this campaign, I predicted there will be one of two eventual outcomes:

    1) The situation will get so inflamed, and reach so many people that it will receive national mainstream attention, at which point the copyright ability of porn will be put in front of courts across the nation and it will be universally stricken.

    2) The trolls cost/benefit ratio will eventually tip the other way and trolling will become a money losing operation, and it will eventually fade out with a wimper.

    It seems to me, that given egos and hubris involved with the main players like Lipscomb and Steele, the current trajectory is toward the first ending. Already Arizona and the PA Bellwether have taken shots across the bow, but the Trolls have not backed off. This will not end well for them, and I can’t say I will shed one tear for the entire porn industry if it falls into the ocean due to their actions.

  3. What is best stragtegy? As typical, I my case, the Plantiff got subscriber info, it just dismissed all Does. Most likely next, they will begin with pat down, threats, etc.

    So might my best move be to file motion asking judge to order Planitiff to destroy all info and be barred from using it in any manner, since they never had standing to get the subscriber info?

    Any thoughts, suggestions?

  4. Motions to quash are denied as premature because:

    “…the undersigned concludes that the propriety of the joinder of all
    the defendants should be addressed after the motion to dismiss is resolved and
    after the preliminary discovery regarding the identity of the Does is conducted.” http://ia701505.us.archive.org/12/items/gov.uscourts.mied.270710/gov.uscourts.mied.270710.49.0.pdf

    (Don”t like that wording).

    However, troll Nicoletti was supposed to put in his opposition to motion to dismiss today which he has not done, yet. http://ia701505.us.archive.org/12/items/gov.uscourts.mied.270710/gov.uscourts.mied.270710.47.0.pdf So far motion is unopposed, cautiously optimistic but have a hunch a settlement is in the making

  5. What is Click Here LLC (http://www.corporationwiki.com/California/Los-Angeles/click-here-llc/103426202.aspx) (http://www.corporationwiki.com/California/Malibu/brigham-field/67218878.aspx)

    Click Here LLC has a location in Los Angeles, CA. Active officers include Brigham Field and Colette Pelissier. Click Here LLC filed as a Domestic on Friday, January 27, 2012 in the state of California and is currently active. The company’s line of business includes Hold Intellectual Property.

    is this related or important ? (http://whois.domaintools.com/colettefield.com) or this?
    (http://reversewhois.domaintools.com/field%2c-brigham)

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