Guardaley | X-Art

Bellwether trial is looming; Lipscomb’s weaselry continues

The Bellwether Trial (Malibu Media, LLC v. John Does 1,6,13,14 and 16 — PAED 12-cv-02078), conceived by Judge Baylson with the goal of testing copyright trolls’ evidence, initially had five defendants. Only a single one “survived” to date: Doe 16, represented by attorney Ronald Smith. All the others did not withstand the pressure and settled. As far as I understand, the pressure was unprecedented: not surprising given that Lipscomb’s extortion “business” is at stake.

Regrettably, I did not do a good job covering this lawsuit: not every event was documented.

The trial is scheduled to start on Monday, June 10. The jury selection and hearing on motions in limine will take place on Thursday, June 6, the day after tomorrow. These motions — filed last week — are the main subject of this post. What is a motion in limine? According to the legal dictionary,

Latin for “threshold,” a motion made at the start of a trial requesting that the judge rule that certain evidence may not be introduced in trial.

The defendant filed a list of his requests in a single motion, whereas the plaintiff’s requests spanned 6 filings, the majority of which, in my opinion, constitutes a brazen attempt at prior restraint and has nothing to do with due process.

Porn copyright troll and extortionist: don’t call me names!

(Plaintiff’s motion in limine regarding references to plaintiff)

Plaintiff has been referred to in many different negatively connoted ways, including: “copyright troll,” “pornographer,” “porn purveyor,” and “extortionist.” Referring to Plaintiff at trial by any title except “Plaintiff” or “Malibu Media” would be unfairly prejudicial and would only serve to impede the impartial administration of justice.

Although it is undisputed that Plaintiff creates “adult content,” use of the aforementioned terms in this context is undoubtedly pejorative and invokes preconceived negative connotations.

If copyright trolling was mainstream news, Jon Stewart would have a field day with a pornographer asking to not call him a pornographer (deja vu). While it is unlikely to happen any time soon, our own talents compensate for it: I can only imagine the joy John Henry experienced creating this cartoon.

On a serious note, while I would agree that “troll” and “extortionist” are inflammatory, “pornographer” is a dictionary word, quite a neutral and precise description of Colette & Brigham’s occupation. Well, maybe these pornographers will disagree — they think of themselves as producers of “fine erotica,” yet if one visits their website (NSFW!), he will not be greeted by an age verification request or a warning, but by a full-screen explicit image with emphasis on genitals. Admittedly, X-Art’s hardcore pornography is a high-end one, but a blurry erotica-porno border is not defined by the cameraman’s skills. To date, the best criterion was articulated by Tinto Brass:

Pornography is there to give you an erection. Erotica is there to give you emotions.

Right: our pornographers and their lawyers find it normal to threaten file-sharers and innocents alike to let their families, neighbors and co-workers know about the hidden porn habits, but the same pornographers suddenly become shy in front of a jury. If hypocrisy could be measured, Lipscomb would undoubtedly make it to the Guinness book.

 

Let’s close our eyes to almost 900 lawsuits we filed around the country

(Plaintiff’s motion in limine to preclude evidence of third party lawsuits)

The Court should preclude Defendant, John Doe 16 (“Defendant”), from proffering at trial any evidence of, or making any reference to, lawsuits that Plaintiff has filed in the past or which are currently pending against third party copyright infringers. Plaintiff expects Defendant to attempt to reference these matters at trial in an effort to introduce unsubstantiated allegation of “abuse of process” against Plaintiff. As further explained below, however, such matters are: (1) inadmissible hearsay; (2) wholly irrelevant to any issue in this case; and (3) even if marginally relevant, sought to be introduced solely for the purpose of prejudicing and confusing the jury by the existence of collateral matters, the merits of which should not be litigated in this lawsuit.

This is probably the most outrageous out of six motions. Lipscomb makes a poor attempt to present this lawsuit as a standalone one. In the motion discussed in the next chapter, Lipscomb writes:

[…]the only facts relevant to this case are those which bear on the questions of whether or not Plaintiff owns valid copyrights and whether Defendant violated any of Plaintiff’s exclusive rights therein using the BitTorrent protocol.

WRONG. The entire idea of the Bellwether trial is to have a look at the bigger picture and decide if a myriads of copyright trolling lawsuits that have been clogging court dockets do or do not constitute a sheer abuse of the judicial system. In Judge Baylson’s words (emphasis is mine),

Bellwether trials have long been recognized as an effective means of enhancing prospects of settlement or for resolving common issues or claims in complex litigations. […] “[T]he results of such trials can be beneficial for litigants who desire to settle such claims by providing information on the value of the cases as reflected by jury verdicts. Common issues or even general liability may also be resolved in a bellwether context in appropriate cases.”).

Keeping the jury ignorant about the very idea of this lawsuit is absolutely nonsensical.

 

Another bleeding contradiction is related to the facts described in the blog’s previous post (events in Wisconsin, where Judge Crocker issued an Order to Show Cause as to why plaintiff shouldn’t be sanctioned for stuffing its frivolous complaints with even more frivolous Exhibit “C” — “extended surveillance” log). Today Lipscomb’s proxy Mary K. Schulz has asked for an extension of time to file her response arguing that… “Plaintiff is preparing for Bellwether Trial”! How the hell it is an excuse if, according to Lipscomb, Wisconsin lawsuits (among others) are “wholly irrelevant to any issue in this case”? Indeed, the hypocrisy of our “biblical scholar” is bottomless.

By the way, Malibu Media has no time to respond to sanctions order, but did file 12 news lawsuits since 5/28.

Let’s close our eyes to my sloppiness

(Plaintiff’s motion in limine regarding references to timing issues related to plaintiff’s expert)

Recently Raul wrote a post about the beginning of the discovery controversy (Lipscomb and his “experts” had been sitting on Doe 16’s hard drive for four months before discovering it was “unreadable”). Many events have happened since then, including plaintiff’s accusation of spoliation of evidence and subsequent heated Doe 16’s attorney’s responses accusing Lipscomb of fraud upon the court. It seems that Judge Baylson was not amused by Lipscomb’s version of the events — the judge decided to appoint an independent expert. After that, our weasel asked for a permission to talk to this expert — an absolutely unethical and outrageous request.

Now Lipscomb asks to keep the jury in the dark about the timing of this entire ordeal. If you read all the documents related to this controversy, you will inevitably roll your eyes at the following. (Have I been repeating the word “hypocrisy” often enough?):

[…] regarding the timing issue of Plaintiff’s expert report as it relates to John Doe 16’s Hard Drive, the fault lies with John Doe 16. John Doe 16 has attempted to perpetuate a fraud on Plaintiff and this Court. And, he has taken innumerable actions toward that end such as sending an unreadable hard drive, fabricating evidence, wiping evidence from his hard drive, and then spoiling the original version of the John Doe 16 Hard Drive. Uncovering frauds takes time. Here, Plaintiff is doing so with all due speed.

The other requests

This post is long enough, and I won’t analyze the other three motions (somewhat reasonable, but keep in mind that even most obvious Lipscomb’s statements should be taken with a grain of salt):


I expect the next week trial to be closely watched and reported (hey, ArsTechnica and TechDirt: Prenda is fun, but Lipscomb’s extortion empire deserves much more attention than it currently receives). Regardless of the outcome, I hope that this trial is a very positive development. In the end of the day, it is not that important who wins — the Doe or the pornographer¹. What is welcomed is the wider exposure of trolls’ sickening methods. Juries are made of people, and people are not stupid, and even Lipscomb knows that. Otherwise he wouldn’t make the censorious requests discussed above.

Coverage

Update

6/6/2013

As expected, the defendant filed his oppositions to Lipscomb’s motions in limine (and Lipscomb filed his opposition). As for the three motions analyzed in this post, defendant’s arguments are basically the same as mine (to be fair, not everyone agrees with those conclusions):

 


¹Don’t get me wrong, I pray for the defendant to win! However, it is not a secret that at least 70% of putative defendants did what they were accused of. While undoubtedly this case will have a huge impact on the future of the Bittorent litigation, finding the defendant liable does not automatically make copyright trolling “business” legit (as acquitting him won’t result in extortionate practice go away at once).

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Discussion

52 responses to ‘Bellwether trial is looming; Lipscomb’s weaselry continues

  1. I disagree with your last point, coming away with a win in the first case to actually go to trial is extremely important.

    It’s not important in whether this defendant actually did it, a sample of one out of tens of thousands doesn’t prove anything. The enormous list of evidence Lipscum wants to have suppressed before trial suggests what the defendant actually did isn’t important to him, either.

    But Lipscum’s hyper aggressive claims on circumstantial, unsubstantiated evidence wherein allegedly logged IP = subscriber = likely infringer = actual infringer = give me your money or I’ll overturn your life apply to every troll case. If no X-Art filth turns up on defendant’s PC, which seems likely, all there is for a jury to rule on is Lipscum’s methods.

    Taking 4 months to look at simple evidence is not acceptable. Hiring an “expert” who doesn’t have a basic understanding of the Windows file system is not acceptable. Filing 500 more cases this spring when you can’t even keep up with a single case at trial is not acceptable. Building a nationwide shakedown business around foreign sourced monitoring software which has never even been shown to work is not acceptable.

    These scumbags need repudiated. Winning is important.

    • The 1TB data drive that doesn’t have an operating system so can’t boot up? 🙂 Have we been shown what Doe16 stated about his 240gig SDD, 1TB HDD system – and when it was created? Did he mention adding the 1TB drive on Nov 11, or was it claimed to be the same as it was months prior?

    • From Lipscomb’s motion for sanctions, it looks like we may not have the best defendant for a Bellwether trial. It certainly looks like on the surface that Doe 16 has perjured himself.

      From all appearances Doe 16 looks like he is pretty technically savvy. If he was going to rebuild systems to try to cover up something, why he didn’t change the bios date in the machine before doing so is a mystery to me. You would still have the problem of a large date range with no activity on the system, and then trying to explain the Microsoft activation date.

      • When we can read the full deposition transcript, we will have a better idea on what JD#16 was doing. I agree that for a tech-savvy person he could have changed the BIOS date first (prior to install) and then changed it back later. The problem would still be the Windows activation record. Even if not tech-savvy, if a person removes a system from the network, it is gone (along with all the possible evidence). Right now I want to see what the court appointed expert has to say on the deposition and forensic exam.

        DTD 🙂

      • The whole Microsoft activation bit seems fishy to me. First off, I can’t believe that you can just call up Microsoft and get that kind of information from them without a court order. Unless of course they called up tech support and pretended to be the owner of that license key and social engineered certain information out of them.

        Also, the fact that a certain Windows activation key was activated on a certain day doesn’t necessarily mean that Windows was installed on JD#16’s machine. All it means is that someone installed Windows using that particular key at that particular time. I didn’t see anything in the declaration that offered proof that it was tied to JD’s computer. It’s certainly plausible that the key was shared with someone else who installed it on their machine. Or that JD got the activation code from someone else themselves.

        • I agree. If true, unless he is leaving out some vital details, that is hacking by social engineering. Lipscomb should himself be referred to the DOJ for investigation of CFAA violations and wire fraud.

          That was an incredibly stupid thing for a lawyer to do and especially to admit to. If he were slightly slicker he would have committed the fraud first and then subpoenaed the information once he knew it was good, only a fool admits to hacking and fraud in a court filing.

  2. I disagree that not allowing any evidence or reference to “wi-fi hacking” is reasonable–it absolutely is not (hell, it happened to me, and there are LOTS of other notable examples in the media of this happening). Why would they not allow something that happens and could very easily throw doubt on the guilt of the accused? I think that motion should be thrown out entirely as it seems somewhat ridiculous.

  3. Thank you, Thank you, Thank you, Thank you, Thank you, Thank you, Thank you, Thank you, !

    “visits their website (NSFW!), he will not be greeted by an age verification request or a warning…”

    https://en.wikipedia.org/wiki/Adult_film_industry_regulations AND https://en.wikipedia.org/wiki/Adult_Verification_System

    could/would Colette Leah Pelissier Field, Brigham G. Field, or Malibu Media LLC be in violation of any of the adult film industry or Internet pornography regulations?

    are they confirmed to be in compliance with their local and State pornography regulations?

    it is widely known that the Obama administration received several campaign contributions from many of the pornography companies, such as Brigham G. Field who contributed both personally and in behalf of Malibu Media LLC. The pornographers gladly supported Obama because his administration “promised” to “leave them alone” to “go about their business as they liked” without fear of inspections or audits such as were conducted by previous republican administrations of the past.

    http://digitaljournal.com/article/334856 AND
    http://www.nationalturk.com/en/u-s-presidental-elections-2012porn-industry-support-president-barack-obama-u-s-elections-news-26764

    wondering if Colette Leah Pelissier Field, Brigham G. Field, or Malibu Media LLC’s current counsel of record would be experienced enough to handle defending them if they were found to be in violation of any of federal, State or local adult film industry or Internet pornography regulations”

    just some additional food for thought as well as some questions for discovery as Lipscomb screws up some more…

  4. If I believed in God (the jury is still out on that one for me), I would hope he would smite that @$$hat Keith Lipscomb down in court via a giant crate of dildos that fell from a plane.

  5. i still don’t understand how using bittorrent can be willful copyright infringement, or even any type of infringement. with alot of the older P2P networks (napster, kazaa) you did distribute whole files. with bittorrent you could be a seeder for over a year and only ever distribute 5 mins of the video parsed out over thousands of packets to thousands more people. if a 1 min clip on youtube is fair use then how is 1 millisecond of a video not? i can cut a film into 1-second clips and give that clip to anyone i want and it is perfectly legal, and if they get the other thousand seconds from 1000 other people then, though round-a-bout and tedious, no law is broken. the technical aspects of bittorrent make a willful distribution claim impossible to legally resolve.

    • Every piece of software consists just of repetitions of 0 and 1, neither of which is copyrighted. However, if you make a list of just where all those ones are, that list is equivalent to the original content. Letting this list be distributed by a number of people and/or mechanisms does not change that. They contribute to the infringement as it does not make sense to view their partial distribution as disconnected acts, like it does not make sense to view exploding grains of gun powder as isolated acts not individually responsible for a flying bullet.

      You need to view cause and effect in units that make sense.

      • If we are going to treat torrent use as an individual offense with individual liability then the actions or contributions of other torrent users who may have been involved independently and after the fact should be completely irrelevant.

        The complete list of zeros and ones of course equals the original content (or a re-encoded facsimile) but all the trolls have any evidence of one individual IP distributing is an extremely small and non-contiguous subset of that list which in and of itself cannot even be viewed. (Many trolls don’t even record that much and their only evidence is that an IP was listed by a 3rd party tracker as a member of a swarm.)

        I can see the argument that an unviewable fragment of the original encoded file as distributed by the copyright owner may be infringement for an exact pattern of zeros and ones. But if it is a fragment of a file that was re encoded since then it is not the original copyrighted content, cannot in and of itself be used to reproduce a facsimile of the original copyrighted content, and as such is not infringement at all.

  6. the only way to do a proper copyright claim through bittorrent is through a conspiracy, and since you can only get 1 judgement per infringement and this whole conspiracy is just 1 infringement, then any settlement moneys would have to be viewed as relevant because if they have already gotten their cash from the settlements of this swarm combined then there is no controversy, malibu has been paid in full and so this case should be moot.

  7. The defendant is not to refer to Brigham Field & Colette Pelissier as pornographers? What is he to do, perjure himself?

    Lipscomb sure needs an enema and perhaps he can get his client to film it and copyright it.

    Justice would be Colette and Brigham going to super max prison for a decade for contributing to the delinquency of minors.

  8. The Court is not to refer to Brigham Field & Colette Pelissier as pornographers? What is everyone to do? Commit perjury?

    • Q: “For the jury state your occupation:”

      A: “Umm, real estate agent?, horse rider? exploiter of young former USSR satellite state beauties?”

      Q: “Please tell the jury the nature of your work as in what typically goes on as a matter of routine”

      A: “We cast, film, manufacture, advertise, distribute and litigate our work product which is “adult content”.

      Chutzbah!

    • Thanks, Raul: your opinion is very important. It is easier to write nowadays: you may notice that I absorbed many ideas the have been flying on Twitter.

      • Still, quite powerful and fun to read. Agree that while it is fun to watch and chronicle Prenda’s descent to the sewer of history, the biggest viper is still healthy and making millions.

  9. Surely Super Lawyer Lipscum will fool the jury. They will not realize the works of fine art are pornographic and obscene given such wholesome titles as; Katka Cums Like Crazy, Mina’s Tasty Anal Plug, Carlie’s Big Toy Orgasm.

  10. This guy is a piece of work.. ok so his past lawsuit history is irrelevant but wants the does(well the ip adress) past history to be relevant. he doesn’t want the plausible act of wifi hacking to be spoken.. has lied multiple times and now attacking doe for perjury.. I guess next he will request the jury to throw rose petals at his feet as he walks and cover their ears if anything negative is said!

  11. As a lawyer, I have to disagree with your analysis of these MILs. The 1st MIL, attempting to limit the use of potentially inflammatory names/descriptions, is very common. Ideally, we want the jury to render a verdict based on the facts and the law, not on prejudice or bias. One attorney standing up and referring to the other as a pornographer could potentially turn this case from one about copyright to one about morality. Yes, pornorgrapher is a dictionary term, but it is also a loaded term.

    As to the second MIL, attempting to limit reference to other cases, I think you misunderstand the idea of a bellwether. The bellwether jury isn’t supposed to decide whether it thinks all these hundreds of cases should be clogging up the courts. Rather, we want the jury to try this one case on the merits, and then from that result we determine how to proceed with the other cases. If Malibu Media wins, then that indicates that its allegations have at least some basis and it can proceed on other cases. It’s a test of their theory of litigation.

    Now, MILs are complicated so I don’t know whether any or all of them will be granted, but I disagree with the analysis of the first two as somehow being hypocritical. Trial is supposed to be a sealed process where the presentation of evidence and argument is controlled, and extraneous information that might be pertinent out in the marketplace of ideas is excluded out of reasons such as fairness, prejudice, or confusion.

    • I agree that the terms Copyright Troll and extortionist should be excluded. Referring to Malibu Media as a Pornographic film distributor is absolutely accurate however and should be allowed. Also while not being allowed to call either Malibu or Lipscomb an extortionist, JD16 should be able to make the argument that they way that they proceed is very much like extortion. I think they number of cases they have filed against whatever number of Does with no cases brought to trial until a judge made them is relevant.

    • Well, that what makes this blog as it is: an opinion blog. One of my mottoes is “factually correct, emotionally biased.” Naturally I’m not neutral and have [very valid] reasons to want Lipscomb to fail. It does not mean I tried to doctor my analysis to fit that goal, I really thought that way.

      # 1. “Hypocritical” is not the motion per se, it goes far beyond it: X-Art trying to present itself as “fine erotica” while being just a quality hardcore porno is hypocritical; Lipscomb, who declared himself a devout Christian, but deliberately chose his business model so it is based on pornography, mostly because it yields more money due to the social stigma — is mega-hypocritical.

      # 2. But… it’s an ostrich approach. I think that the jury will be briefed what “bellwether trial” is and why it was conceived. It would be really strange to create an impression that this is a standalone lawsuit after that. I would accept if details of other cases were barred from mentioning, but to the best of my understanding, Lipscomb wants to shield the jury from the very fact that he initiated 850+ carbon copy lawsuits, which in turn means that he has no intention to litigate the majority, if not all of them.

      Anyway thanks for chiming in: I always eager to hear different opinions (especially based on experiences I lack), and I do change mine when I’m convinced.

      • No accusation that you doctored your analysis, and everyone is certainly entitled to an opinion. And non-lawyers have been just as insightful (or more) than lawyers in this Prenda saga, so keep doing what you’re doing.

        I could be wrong, but I would be surprised if the jury is told anything about the trial being a bellwether. The whole point is to try to see, in light of the numerous cases, if Lipscomb, if given the chance, could successfully try such a claim. It would taint the process if the jury was given the broader context of the case.

        • Well, good luck to Lipscomb with that. Keeping information from a jury (for whatever noble reason) in the Internet age is futile. Unless jurors are kept isolated (and guarded!) for the duration of the trial, pretending to know what they are aware of and what they are not is naive to say the least. Unless (see Malibu’s proposed Voir Dire, questions 17/18) Lipscomb tries to disqualify anyone who is capable of googling…

        • It would be unfair if the defendant was not allowed to present evidence that this trial is the exception rather than the rule. Especially seing how if was forced upon the plaintiff who prefers to threaten 100s but shies away from putting in its case.

        • Especially MM’s history of failure to provide discovery. In the Fantalis case they repeatedly refused to produce required documents, then payed him to settle. IMO that is super relevant.

  12. I am pretty pretty sure that the term “porn purveyor” was only used in troll-repelling blogs after a JUDGE made one of the early anti-troll rulings. I haven’t been able to find the case quickly. My remote vague recollection is that it was one of the northern California rulings, at least one and a half years ago.

    Plaintiff counsel is asking to strike a term by a Federal district court judge, introduced precisely to describe this kind of case?

    This is only one of many outrageously unequal maneuvers by plaintiff and counsel.

    • It was the judge that first used the term in copyright trolling discussions. Then blog readers followed. I didn’t say it clearly enough the first time.

  13. According to her tweets Colette is now in Philly so this trial is most definitely on to “defend their copyrights”. That being said, the majority of civil lawsuits that make it this far settle in the midst of the jury selection phase.

    • Maybe we should refer the judge to the comments made by them on FCT and DTD about how they called everyone else posting there thieves?

    • I hop Brigham is not accompanying her: given her IQ, it will be fun to watch her answer to defendant’s attorney’s questions…

      • I can think of a few possible things. If the judges declined all of Lipscombs motions to suppress evidence, it may have become much more attractive to him to have a bench trial instead of trying to convince twelve random average people to ignore the sleazy stuff he’s done thus far, ignore the possible defenses JD16 has, and convince them to find JD16 guilty based on very thin, very technical evidence.

        • I just looked up the U.S. Constitution’s 7th Amendment. A jury trial is a guaranteed right for civil suits greater than $20 (which this very clearly is), though it’s a bit hazy on the finer details.

          Perhaps a lawyer can answer this question: Would the Defendant in these cases be able to demand a jury trial if they wanted one, or is it entirely up to the Plaintiff to demand a bench or jury trial?

          • I’m not a lawyer, but I’m pretty much sure: if at least one party wants jury trial, it will be a jury trial. In this case they both agreed not to have it (and basically settled: the only thing is left to judge is to set damages given the statutory range).

  14. The update docket also no has Doe 16’s response to the motion in limine re: Peer Media. It gives some interesting facts. We already knew that it was work the Lipscomb had done initially. It turns out before he found out that the IP had been reassigned Lipscomb was threatening to use the evidence against Doe or the spouse if they didn’t settle. (I can’t tell when in the process who is 16 and who is the spouse changed). The fact that it didn’t cover Malibu Media material didn’t seem to bother him then.

  15. Rfc express just update MM files some new single does cases.One of the paper name:Exhibit A FBI statement . anyone know what is it about?

  16. Been a while since I contributed anything… Just recapped the “FBI File.” It’s FUD, definitely FUD. Not sure which is funnier though, your article SJD or the doc.

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