Guardaley | X-Art

Reader’s comment: Shame on you Keith Lipscomb and shame on you X-Art

I still can’t push myself to listen to the Bellwether trial audio recordings. While I’m procrastinating, some opinions began to emerge on the web, and the chorus of those opinions is not singing in unison:

One particular comment to my recent post has struck me as very insightful: I simply couldn’t help making a post out of it. Thanks to the author, whoever he is.

By Anonymous

X-ArtThe “Winning” Team:
Patrick Paige, Tobias Fieser,
Christopher Fiore,
Colette Pelissier/Field,
Keith Lipscomb, Michael Patzer

You know, I’m listening to the audio transcript, and I have to say it’s worth doing so just to hear the cringe-worthy ass-kissing of the judge by Lipscomb in the beginning. Listening to it, you’d think the bellwether trial was Lipscomb being raised to Master Mason or something. His tone is so sycophantic that even the judge, clearly embarrassed, admonishes him for his unsubtle brown-nosing. Were you not aware of how the trial was going to go, you’d almost feel embarrassed for Lipscomb. If nothing else, the transcript is worth listening to just to get a fix on Lipscomb’s voice and manner — it is plainly indicative of the kind of man he is.

As it goes on, Lipscomb’s voice is bugging me more and more — it reminds me of something.

Far different from John Steele’s vaguely simian mumble-grunts, Lipscomb sounds like the guy who got shoved into lockers and had his glasses smashed by minions of same kind of people who now run Malibu Media (or people like John Steele, now that I think about it). I don’t know anything about Lipscomb, but just listening to this transcript, you get the sense of a very small man on stilts: Now that he’s a lawyer he gets to hang out with the popular kids who once shunned him and pushed him around, and he has, in predictable fashion, taken pleasure in tormenting others as he was once tormented. No more smashing Keith’s glasses and pushing him into a locker! He runs with the cool people now and he’s finally going to experience the sublime pleasure of ruining people, and getting paid to do it.

And then it hit me: Shoeshine Boy. Underdog’s meek, milquetoast alter-ego. That is what Keith Lipscomb’s voice sounds like, to me.

Two other things, on another note

(a) Any mention of Malibu Media on blogs should always mention X-Art. People searching on X-Art should see the way they treat people — hits to this blog and others should be near the top in search hit lists. There are thousands of ways to spend money on pornography on the Internet. People ought to really consider whether enriching these people serves any purpose, given the alternatives. The tendency of pornographers to regularly conflate the “right to be compensated for work” and “destroying people’s lives because that’s how the statutes read” needs to be brought to light: they are not the same thing.

Pornographers and their advocates insist regularly that because an argument can be made that downloading porn you didn’t pay for is wrong (and illegal), that an appropriate and proportional remedy is to relegate people to debt slavery. X-Art seems to have no moral compunction about doing this and people who are going to pay for porn ought to think about, concerns about sexual exploitation aside, whether or not they want to pay sanction to people who behave this way. I sure wouldn’t want the Malibu people as neighbors, and I sure as hell wouldn’t give them my money.

(b) A lot of bad blood could have been avoided by simply sending out settlement letters asking people whose IP addresses they subpoenaed to buy a year’s subscription to their site. Not only would this have grown their subscriber base (and compensated them for supposedly lost revenues from torrenting), but maybe people would have found a subscription worthwhile and renewed it (not only for the content but for having been treated equitably).

Maybe positive word of mouth (“Good Guy X-Art”) would have attracted other people to the site as well (“Look how good our stuff is — we think a subscription is worth buying and we think you’ll agree.”). X-Art has decided to be the sleazeballs people tend to assume all pornographers are. I understand feeling like you’re being ripped off and you’re angry about it, and I understand insisting on compensation and even reasonable damages — I cannot understand a human conscience that believes wrecking lives and relationships is a just response to such relatively minor transgressions — transgressions I would add that in balance probably drive more subscriptions to your site than actually deprive you of revenue. The greatest fallacy in anti-piracy arguments comes into play here: the idea that every download represents a lost sale.

It doesn’t. It never has.

Lastly, I admit to some fascination with Keith Lipscomb’s putative religious roots. He is now being compensated to humiliate people, possibly wreck families, and even destroy people’s lives on behalf of pornographers. Even if one takes the road of principle, that people ought to be compensated for the content they produce, I wonder if he has any pangs of conscience whatsoever about completely steamrolling people for blagging one molecule out of a giant landfill of pornography that covers the Internet. I get a pang of conscience when I kill a moth by mistake or go through the express checkout aisle with one too many items — I would love to get into Lipscomb’s head for just five minutes to know what it is like to be him. His grossly exaggerated description of BitTorrent bringing on the Tortpocalypse (or something — he made some sort of ludicrous exaggeration along these lines) is so absurd, I cannot accept that he believes what is coming out of his own mouth. Or maybe the problem that as a pornography lawyer, Keith Lipscomb has fallen so far, that he actually does. And that’s sad.

I’m not a religious person — and even when I was, I was a horrible sinner, but I might make an exception and say a prayer for Keith Lipscomb. I hope he truly questions what values it is he is serving and how he is living his life before it is too late.

I have no such hopes for the pornographers he represents. I am sure they believe themselves to be honorable business people who are the victims of Internet porn hounds. But I think when you get to a point that you’ve decided to slap your name on pornography, you’ve damn near reached the moral point of no return. Like a sort of ethical diabetes, human conscience is just ineffective at curbing your worst instincts anymore, and little you do triggers any sense of guilt or shame… or mercy.

Shame on you Keith Lipscomb and shame on you X-Art.

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133 responses to ‘Reader’s comment: Shame on you Keith Lipscomb and shame on you X-Art

    • Tobias Fieser in that photo certainly doesn’t look like the supposedly part time college student wanting to be a tennis player?

      Could all the postings about Tobias Fieser had him wrong?

      I thought this was the Tobias Fieser everyone was taking about.

      Btw Collette, the IPP findings are flawed. They are just not admitting. One day, someone is going to expose it. Someone with money to spend which most of us don’t have. Plaintiff is counting on this.

      I’ve comb thru many expanded analysis and read thru motions by plaintiff responding to motions to quash etc. A common theme appears. There are definitely PC games in all of them particularly Call of Duty and some software and also popular tv series such as Dexter. Throw in a few vaguely named files for good measure.

      DTD and SJD have covered before that plaintiff profiles the supposedly infringer. Typically male, enjoy video games.

      How I know the findings are flawed? I’ve been targeted and in the supposedly expanded analysis, it shows Call of Duty and at least 4 other mainstream PC games. Not only do I not have BitTorrent installed, I do not play any computer games. Ever. The last gaming consoles I have are Wii and PS2.

      How did those files came about?

      1. Someone is using my wifi to download them

      2. IPP made it up

      3. IPP surveillance is erroneous

      Take your pick.

      • If you have an organized collection of “Exhibit C” pdfs, I would appreciate if you share them to me: I’m thinking about a research. If it’s a hassle, do not bother.

        • SJD, I have Exhibits B and C PDFs for 10 Northern Illinois single Doe cases from January and February, wanted to compare them with the one I have found in my own case. I can send them to you if you want them. BTW, my Exhibit C was 100% accurate.

        • After the trial, Colette, Fiore, Paige and Lipscomb experienced schadenfreude, and only Germans displayed their backpfeifengesicht.

  1. Look at the rating above; Colette has read the post. 🙂 Alas, I was right: she wouldn’t understand. Different species: a kind with an organ that tells good from bad atrophied. No remorse, no empathy, no forgiveness.. and a blank stare when someone tries to explain these concepts to them.

    An old joke: two classmates meet after ages: one is a successful businessman of playboyish appearance, the other one is an unemployed and desperate pal.

    — How I you?
    — I’m great, bought a new Lamborghini. What about you?
    — I have not been eating for 3 days 😦
    — Oh no, my friend, it’s not good: you MUST FORCE YOURSELF TO EAT!

  2. Yes, please be careful. You should listen to the entire audio of the trial before posting slanderous statements.

    Keith is a good man and an excellent attorney. It is the defendants who perjured themselves and forced us to spend over $200k to prove our case.

    On another note, we truly appreciate all of our members (thank you for the support). It is our constitutional right to create beautiful erotica for men, women and couples to enjoy (listen to the judge).

    Can you please leave us alone and stop stealing our copyrighted works. If you don’t like erotica, leave it for others who do to enjoy it. If you like it, just join our site. It is so simple.

    “Justice is sweet and musical; but injustice is harsh and discordant.” ~ Henry David Thoreau

    • Colette, there is a proper way in fining the guilty party that steals your work, and there is what you do, give a basic black check to ambulant chasers like Lipscomb with 90% of the profits to extort thousands. You have to understand that your work has to find its way to torrent sites in order for attorney and his forensics to track the activity. The best way to find the guilty party is to encrypt all videos that you “legally sell” and when your work is found on the torrent site, you know exactly what member purchased the video and uploaded it to the server. This way if you do decide to sue someone, you know 100% who stolen the work. However, many have already pointed out, including one of the defense counsels in this case ( that video’s in question are monitored on the same day they are released, in short your guys upload the videos yourselves, track them, and extort thousands.

      • That is 100% untrue! We do not upload our own videos to the torrents EVER, that would be crazy. I want to state for the record that the fight against the torrents has cost us, not the other way around. And we are working on methods to encrypt the videos further, but it is not as easy as you think. Once someone has an unencrypted version it will be available for thousands more. We are working on every angle possible to combat this threat, but people still need to know that they have to stop using torrents for illegal purposes. I hope you can understand that.

        Best regards,


        • By “encrypted” you probably mean “marked.” it was done before, and I don’t believe it is a rocket science. Flava Works did it and won millions. Although the fine is still Kafkaesque, at least Flava had an argument, and I wouldn’t call them “trolls.”

          In 2011 Fisher and several other defendants were sued by adult entertainment company Flava Works. The case in question differs from the so-called “John Doe” lawsuits as the copyright holder had detailed information on the defendants who had paid accounts on the company’s movie portal.

          For Fisher the trouble started when instead of just viewing the films for personal entertainment, he allegedly went on to share copies on BitTorrent. These illicit copies were traced directly back to his account through a code embedded in the videos.

          “Plaintiff has proprietary software that assigns a unique encrypted code to each member of Plaintiff’s paid websites. In this case, every time the Defendant downloaded a copy of a copyrighted video from Plaintiff’s website, it inserts an encrypted code that is only assigned to Defendant. In this case, the encrypted code for Defendant is: ‘xvyynuxl’,” Flava informed the court.

          Talk to these guys.

        • You are not fooling anyone except perhaps Judge Baylson. You are not going to educate the world into not stealing digital content on the internet.

          When the case started Fiore boasted about the biggest settlement of $ 10K or $ 20K with a gay bar that was showing your work(s). This was understood as excessive for an individual but this was a business infringing and making money off the infringement. Fiore indicated out of court settlements were much more reasonable and fair.

          Well now you have a $ 200K to $300K judgment against an individual for five videos who likely never used them to profit. For the average American it would take about 30 yrs to save this. This is the price of an average home.

          The person’s life is destroyed and it is all about money because it will have no affect on others who will continue as usual figuring Doe16 was just very unlucky.

          30 times statutory damages is outright insane.

    • 200 grand! Damn, Colette. I guess that’s another solid gold Humvee you can’t afford. My heart bleeds for you. Here, have a sad song played on the world’s smallest violin.

    • X art are immoral.

      They realize they appear to be psychopathic. And being fake religious, c’mon.

      They have ruined many of their models lives too. You should investigate that topic, btw.

      So sad they are being forced to sell their porn house and heading to bankruptcy

      We are working on a CLASS ACTION ON lawsuit against them.

  3. SJD, YOU are the one who does not understand. You do not know me and never will. I had the pleasure to meet Jordan Rushie at the trial. He (unlike you) was there for the entire process and can speak the truth. Ask him who I really am.

    I am sorry for you and also sorry for the people who got caught stealing. But something must be done about this and it seems like we are the only ones willing to take the risk and stand up for what’s right. If you get a speeding ticket, you must pay it and stop speeding. If you want to live in the United States you must abide by the laws of this country, no more, no less.

    I hope you will find a more worthwhile cause for your life and that you can wake up and be grateful for what you have, instead of spiteful and gossipy.

    And lastly, I would never let someone go hungry if I had the chance to help. But one must make sure to be able to help. If we can not do business, we can not help others (you know how they say on planes that you must put on your own mask first).

    And, sometimes, unfortunately you have to fight. As Dylan Thomas said: “Do not go gentle into that good night” and the torrents are getting WAY out of control.

    “Do not dwell in the past, do not dream of the future, concentrate the mind on the present moment.” ~ Buddha

    I will pray for you. Forgiveness is actually the only way.



    • I’m not against that those who are guilty should pay the fine. Never was, never said that breaking law is a-OK, no matter how fair or unfair this law is.

      Forget about this particular lawsuit: let assume that defendant deserved to compensate you for trial expenses. Yet if you think that 10,000+ (going settlement rate) plus ruined families and careers is a fair “speeding ticket” rate, we will never understand each other. Re-read what the guest poster said:

      I understand feeling like you’re being ripped off and you’re angry about it, and I understand insisting on compensation and even reasonable damages — I cannot understand a human conscience that believes wrecking lives and relationships is a just response to such relatively minor transgressions.

      THAT is the essence of our problem with people like you.

      • Ok SJD, I do not want to wreck lives or relationships, but I do not believe that stealing is a minor transgression. So what do you suggest we do?

        Ask the defense counsel in this case about my compassion and why the other does were not named.

        • So what do you suggest we do?

          Ditch zero tolerance approach. Give people a warning, a chance. If they ignore and continue, go after them. Quite simple, isn’t it? I know Lipscomb will come up with 99 reasons why this is a bad approach, but the reason #1 to him has always been: it’s about easy money. Everything else is BS.

      • Same reply I left on my blog…

        Here is the thing… a copyright holder has an exclusive right to reproduce and distribute copies of the work to the public.

        Just because an artist or content producer uploads something to YouPorn doesn’t give the world the right to redistribute it anymore than a person can pirate a song because it’s played on the radio.

        I’m listening to New Order’s “Regret” right now on Pandora, which they have made available. But it doesn’t give me a right to download the song off bittorrent without paying for it.

        Similarly, Miley Cyrus’s “Party in the USA” is on YouTube, but if I want the song or video I have to pay for it.

        I’m just sayin’.


        • But I think the difference between Pandora or Spotify is that there is no “big fat download button next to them” like there is on YouPorn (as another poster pointed out), I wouldn’t know since I don’t normally watch porn (even though lately I have definitely gotten my fill, unfortunately not for pleasure).

          Artists’ contact the streaming sites like Spotify and ask them to upload their content to the Spotify servers, then the content can be streamed by Spotify users and in turn the artist’s sales go up. The artists also get paid per stream; the current payment per stream is $ 0.005. It works quite well for musicians. On YouTube there is no way to download straight from the site either.

          Downloading a film from YouPorn does not give you the right to distribute copyrighted works. But when the author uploads their content to YouPorn, are you telling me that they don’t think it will get redistributed, when there is a download button right next to the movie on the site? Collette mentions that she has sent DMCA take down notices to tube sites, why would she send the DMCA notices if she is the original up-loader? Is X-art material distributed anywhere other than Collette’s website with permission? Is x-art receiving $$ per stream on any of the tube sites? Too bad none of this was addressed when she testified. That trial was one sided. As far as I can tell you have you played both sides here, so either way it was a win-win for you. I’m also wondering if part of the agreement you came to with Lipscomb was to suck him off in a blog post?

          Should I have to pay $10,000 to listen to Miley Cyrus? I myself wouldn’t pay half a penny 😉

        • Watch out, Miley Cyrus and her Troll will come after you for violating her copyrights, by posting this video clip without permission.

    • Colette,
      Once again, neither SDJ, DTD or other posters here advocate stealing your or other works on via torrents. We are arguing that the extortion model (pay up or else) is morally wrong and puts a tremendous hardship on thousands of Americans. Like I posted above, encrypt your videos, find the guilty party and sue them. BTW, are you aware that many of your videos are also available on tube sites, aka red tube, how about sending some DCMA takedown notices.

      You have to understand, that most innocent Does simply cannot afford $250 per hour attorney fees to defend themselves. With he current shotgun approach 30% of Doe’s you are targeting are innocent, and out of 70% correct hits, is it moral to sue parents for their teenager downloading your videos?

      Get off your high horse, literally!

      • Most of X-Art’s videos, including ones X-Art/Malibu Media is suing for, are available in full for free including with a big fat download button next to them on YouPorn…and they indicate that they were posted by X-Art themselves.

        I consider this to be an abandonment of copyright, certainly for the videos posted.

        • Indeed. Here is the list of X-Art movies uploaded by X-Art and which titles are found in lawsuits. I wonder if Colette cares to explain:

          Links are NSFW!

          Emma Private Tutor (uploaded 1/16/2011): 13 cases (e.g., Malibu Media LLC v Does-1-5 12-cv-0233 (DCD))
          Young & Hot (uploaded 3/9/2011): 4 cases (e.g., Malibu Media LLC v Does 1-5 No-12-cv-1392 (DCD))
          Caprice One Fine Day (uploaded 7/13/2011): 7 cases (e.g., Malibu Media LLC v Does 1-13 12-cv-0177 (MDFL))
          Awesome Threesome (uploaded 8/27/2011): 1 case (Malibu Media LLC v Does 1-6 12-cv-0338 (MDFL))
          Tori the Endless Orgasam (uploaded 10/15/2011): 46 cases (e.g., Malibu Media LLC v Does 1-2 12-cv-1074(MDFL))
          Mutual Orgasm (uploaded 11/6/2011): 1 case (Malibu Media LLC v Does 1-6 12-cv-0338 (MDFL))
          Anneli Leila Menage a Trois (uploaded 6/25/2012): 1 case (Malibu-Media LLC v Does 1-11 12-cv-0843 (COD))
          Yoga in the Sky (uploaded 10/17/2012): 5 cases (e.g., Malibu Media LLC v Does 1-5 12-cv-1393 (DCD))
          Veronica Wet Orgasm (uploaded 2/7/2013): 7 cases (e.g., Malibu Media LLC v Does 1-10 12-cv-0405 (COD))

        • The first link on YouPorn there has over 32 million views. A person could watch it 32 million more times without apparently violating any copyright, or download it and watch it 32 billion more times. It is the full movie in its entirety.

          This is why this whole copyright trolling thing is utter bullshit.

      • $250/hr? That’s a state-court, small town lawyer. AIPLA average for an experienced copyright attorney with 10-15 years of experience is around $400/hr and the good ones charge quite a bit more.

  4. I implore you to please listen to the audio of the trial and what I said under oath before making any additional comments.

    If you get a $200 speeding ticket will you speed again? Most likely yes. If it was $10,000 would you think twice before stepping on the gas and risking lives. There must be a deterrent or this will never stop. If you can’t afford $250/hour for an attorney then think twice and just pay the $24.95 to join and don’t steal. In other words if you can’t pay the fine, stay under the speed limit. I did not fully understand this whole process at the beginning, I do now. Our attorneys are instructed to go after only the most grievous offenders and it is not a shotgun approach; our technology is very accurate (again listen to the audio). Lastly, we send thousands and thousands of DMCA notices and the tube sites mostly respond and take down the content. Torrents, never.

    I truly do wish you all the best of luck in whatever your personal endeavors are, I am not out to harm anyone, only to protect our rights.



    • Yeah, when I kill a mosquito, I always say: “don’t bite me again!” You are trying to justify unjustifiable and you are in a doubt.

      Our attorneys are instructed to go after only the most grievous offenders

      Like this lady, Shannon Vincent? Who will compensate her for her troubles? I have more stories, but Lipscomb victims, those who settle, are bound by non-disclosure agreements, so they are reluctant to go public. What about these people? I see now, Colette that you sincerely believe in what the Wormtoungue Lipscomb told you, trust me: he is a demon. You don’t know (or willingly close your eyes to) 99% of his douchebaggery.

      Therefore I experience pity towards you, not hatred, no.

      I am 66 years old and I have never downloaded any movie through a Bit Torrent or any other program in my life. let alone Malibu Media’s pornographic movies. I am also not aware of anyone who may have downloaded such movies. if in fact the alleged act ever even occurred. Regardless, in response to the lawsuit against me I have repeatedly attempted to contact Malibu Media’s attorney Jason Kotzker to offer proof that I am innocent of the charges leveled against me. Specifically, on at least three separate occasions I have made verbal/written offers to Mr. Kotzker to allow him to inspect all internet capable devices that were in my possession during the time of the alleged infringement so that he could verify that none of Plaintiffs copyrighted materials nor any Bit Torrent software are/were on any of these computers. Mr. Kotzker has not responded to these offers.

      I was dismayed that Plaintiff failed to take this opportunity to investigate the matter prior to filing the lawsuit against me. I have also offered to sign an affidavit confirming that I have not destroyed or altered any evidence in any way, nor am I aware of anyone who downloaded the works in question, if in fact such an event even occurred. Again, Mr. Kotzker did not respond to this offer.

    • Okay so I listened to ALL of the audio, why was no one cross examined???? WTF kind of trial was this??? I’m sure you like Jordan because he blew his doe’s case, and helped Lipscomb in the process. Total incompetence IMHO.

      • I represent clients – not causes.

        And my clients have assets, families, and professional reputations. It is my job to protect those things, not to make the internet happy. You’re playing with blogs, I’m playing with real lives here.

        The Copyright Act imposes harsh penalties against people who infringe on copyrighted content. And when a Doe is subject to the civil discovery process, s/he either has to perjure herself under oath or admit that they infringed on the work. (look how well taking the perjury route worked for Doe 16). I’m sorry you don’t like that, but it’s the truth. Many of these cases should never see the inside of a courtroom, especially ones where a guilty Doe defendant has a lot to lose.

        Litigating the defense of someone accused of mass copyright infringement in a way meant to please the internet, rather than doing what is best for my individual client, would be cause for moral and ethical outrage.

        • So what does that have to do with cross examining the witnesses? Did your client waive that right because he was guilty? Your inaction made Libscomb look real good. What are you doing filing a motion to quash for a guilty client anyway?

        • @Zeno:

          Ad hominem? You came in here claiming (or at least implying to be) to be a “Phili” (where?) lawyer, and then you made several false and disparaging claims against me and my colleague in a public forum. If you contend they are true, I challenge you to identify yourself.

          Also, I suggest you Google my co-counsel, Marc Randazza. I dare you to say that Marc is too inexperienced to handle a copyright infringement case on a public forum…

        • @rushie

          Jordan: “Oh no people are attacking me on the interwebs and I don’t know how to anwser thier very real questions. Oh I know!!! I’ll just name drop Randazza, that will do it! That will get people off my back, they won’t fuck with Randazza. When it gets to hot just Say Marc Randazza, as I have on all the other blogs when the questions seem to hit too close to home.”

          • Although definitely is written by a person with imagination, kind of rude. I have imagination too, but I’d be much more subtle.

          • HAHAHAHAHAHA YES!!! There is now Jordan Rushie gay porn on the internet.

            It’s slightly inaccurate, though. I was wearing a pink tie at trial, err… nevermind.

        • @Rushie
          Haha! I have to admit, after reading that and then seeing your comment, that you do have a good sense of humor sir.

      • I didn’t file a motion to quash for my client. His former attorney did (a guy he found on the EFF subpoena defense list). Had you had read the papers, you would have known that I called my client’s former attorney inept in several court pleadings for filing it, because the motion was completely moronic. I am glad you recognize that.

        See here, my motion in limine:

        Click to access Motion%20in%20Limine%20to%20Testify%20Anonymously%20%28filed%29.pdf

        My client’s case settled while our motion to dismiss was pending:

        Click to access rr_mol_mtd_02088pa.pdf

        I can’t get into the details of what the settlement involved.

        • I do have to say though that I thought the point of the Bell wether trial was to test the litigation process and gather a good indication of of what is likely to happen at trial. Of course you have to look out for your client first and foremost but this trial was to set a precedent. Not cross examining IPP or Collette? I really just don’t get it. I understand that you can’t talk about the settlement details but I indeed believe (my opinion) that banning cross was part of the settlement agreement. It was just a wasted trial unfortunately.

        • falcon789,

          The Bellwether is what it is. The legal system is broken, just about everyone will settle out of court prior to trial. Eventually someone with deep pockets and a sense of moral injustice will take Malibu Media to trial and reveal all.

        • You have the audacity to refer to another attorney as “inept”?? That MiL looks like it was written by a lay-person and is actually WRONG with regard to s.504! Amateur copyright lawyer wannabees are feeding the trolls through inexperience and a complete lack of understanding of federal practice and copyright law. A few hours on Lexis doesn’t substitute for years of working under experienced IP litigators — an attorney only out of law school for a few years should not delude themselves into thinking that they could defend a client in a highly technical area of law. This is not a feature film available for downloading via bittorrent.

          In one of your posts you talk about the needs of your client being very important to you. Did you consider your own level of experience in these matters, the complexity of the matter, and the potential risks to your client before accepting this engagement?

          People like to bash “biglaw” for the way it treats young associates and for the fees they charge. You would only be a 6th year in biglaw and wouldn’t even be up for partnership for another two years or so (4 as an IP partner) at most of them — an attorney nowhere nearly experienced enough to be allowed to litigate a complex federal matter on his own. This escapade would have likely ended your career in biglaw — despite your claim that your client escaped “relatively unscathed”. How would they have fared if they received representation from an experience copyright litigator? That’s the measure that’s applied by Bar Counsel in disciplinary proceedings, by the way.

          My apologies to the site operators for not following the “rule” of attacking the “troll”, but the local bar in Phili was watching this closely and my colleagues and I were appalled at the lack of experience, knowledge, and decorum of ALL counsel in this case. The “scuttlebutt” around the local Federal Bar is that Judge Baylson was as angry at Mr. Smith for allowing his client to perjure himself as he was at the defendant, and was not at all pleased with the quality of lawyering in this case. Understandably. He ordered a bellwether and got a bunch of junior associates playing lawyer.

          As importantly, the one and only issue that was decided by the court was completely absent from your post mortem analysis (you walked right over it in one of the paragraphs). I also read the nice “pat on the back” you gave yourself, on your website. The fact that you client admitted liability and settled-out on the eve of trial isn’t exactly the type of thing that pads one’s resume, young man.

          • My apologies to the site operators for not following the “rule” of attacking the “troll”

            That’s OK 🙂 No need to attack, just spitting in the general direction to the troll is quite enough.

        • Oh cool, an anonymous armchair lawyer…

          Well let me tell you this – when I was on the moon, Superman taught me how to fly. It was awesome. I learned how to practice law under Superman, Batman, Spiderman, and The Flash. I learned from the best of them.

          If you claim to be a lawyer at least have the stones to identify yourself. Otherwise, it’s kind of hard to identify how much weight to afford your statements.

          And if you are a the awesome, kickass, knowledgeable IP “Philie” (where?) litigator like you claim, why are you embarrassed about your identity…?

        • @rushdie — It’s obviously very important for you to resort to the ad hominem rather than the substance. That’s the same problem that appeared to plague the bellwether. You wanted to put the plaintiff on trial rather than the merits of their claim. Here, however, you seemed to ignore the fact that I never mentioned my background or experience and rely solely on my twitter profile. Obviously, you didn’t read the whole thing. What does it matter who I am or where I practice(d)? What, if anything, I said hinges on my identity? Feel free to address any of the statements or questions on their merits. None require a table of points and authorities.

          @French — sorry, it’s Smith that I heard raised some eyebrow by not hiring his own expert to review the hard drives before producing them. Perhaps an admin can edit that in the previous comment. Your comment, however, makes me wonder… How do you know that? Can you state that you personally recognized every person in and about the proceedings?

          As for who I am. Quite frankly, none of your business. Not a party or counsel in this or related proceedings, nor a potential Doe. If you need to know anything, it’s that I’ve been fighting the “trolls” since Lemelson and Katz. To those of us that have practiced nothing but IP law for our entire careers, we take the abuse of the copyright and patent system quite seriously. Melvin Nimmer must be turning over in his grave right now.

      • Judges are not always perfect, either.

        These were the circumstances I was given to work with. From my view, it was a huge victory for my client. S/he emerged relatively unscathed.

        Quite honestly, that is all I care about.

    • Also, your reasoning is flawed because you know nothing about feelings a law-abiding citizen experiences when she learns about the accusation. I’ve been there: four sleepless nights, lost productivity, heightened emotions at home. At that time I did not even know that there are two systems — criminal and civil! I had all kind of fears: jail, ruined future for me, family and child (I was not a US citizen at that time).

      OK, I was innocent, not everyone is (and I admittedly in the minority). But… there is a lot of folks who are torrenting not realizing possible consequences. Believe me: a mere threat of lawsuit if they continue would scare the shit out of the majority. Only very few cynics would continue, and moreover, those cynics would most likely do it via VPN.

      Zero tolerance necessarily implies zero empathy and zero mercy.

      • Not to pry here, but did you try to find the infringer in your case SJD? It is hard to see 5 people in some way admit to it after spending thousands of dollars to prove their innocence and everyone else not question those around them claiming this “has to be a scam”, I would never do that!

        Why don’t you counter-sue your troll, and take this blog to the next level? Why still remain anonymous?

        Not to speak on his behalf, but Jordan Rushie said that he will take innocent people pro bono.

        Seriously though those of you who are “innocent” should stand against trolls yourself and not blame/critique Jordan for “blowing the bellwether” because he did very well given a perjuring client.

        By the way, a quick question for Jordan Rushie, did these doe’s have assets? The judge made it seem like he didn’t know, but I think Malibu Media pursued this case because they had wealth, so any input you can give on the demographic spread would definitely be insightful.

        • You are either trolling, or don’t understand the issues at hand. Nonetheless, I’ll answer your questions once.

          1. No I did not. There was no infringer in my case. Or you may call it “innocent infringer” ($200 or equivalent of 2.5 hours of my time, i.e. less than I spent on a single post): here is a hint. Hint 2: not every label in my case indicated a copyright-protected material. Why should I search for, and then turn in a clearly innocent person… to a proven scumbag?

          Moreover, even if it was a clear-cut infringement and I knew who did it, would I turn this person in? No. 1. In the culture when I’m from such action would make me an outcast for the rest of my life; and I value my roots. 2. It would be contrary to my belief that the looming punishment is grossly, obscenely, unconstitutionally not proportionate.

          2. I have the same question: why? Do you enjoy lawsuits? I don’t. If something like this happened today, I maybe would counter-sue. 2 years ago I was scared and disappointed in justice. You don’t understand the genius of copyright trolling: it is designed to make it an expensive lottery, an exhausting, humiliating experience, yes, even for innocents. Fantalis did fight. And he won. But he lost a part of his life: no money can compensate for that.

          In addition, I believe I do much more for the society the way I can. It may sound pathetic, but I don’t make charitable donations (while an average households donates more than 2K annually). I contribute my time. And fortunately, I see the results.

          I will not address the issue of anonymity: frankly, it’s not anyone’s business. You’ve asked a couple of innocent questions yet used a proxy nonetheless. Do you think throwing wrenches to multi-million semi-legal mafiozo-style machine is safe? Think twice.

          There is nothing strange that all the defendants in Bellwether turned out to be liable. But it does not automatically prove that 100% those who has been “caught,” “did it” either.

          I never said that the majority of victims “did not do it”. It’s a small yet (naturally) vocal minority. Even if it is 0.1% (which is much below any sane estimate), 300K US victims translate to 300 families whose well-being had been raped.

        • SJD,

          I never meant to anger someone, I was curious of finding out what message people here were standing for. I am somewhat a victim, but know sometimes you need to settle things, and people on these forums are all acting like this is a scam and not trustworthy. I just don’t know if anyone’s case can survive a mock bellwether trial because ultimately that infringer is either the subscriber, someone in their household or a neighbor. They would have gouged these defendants so long that someone in the family would come forward with an admission of liability.

          Otherwise though honestly I (if I were you and confident of my innocence) would not hesitate to counter sue any day and that was a compliment for the kind of case you would bring. I wish i were in a position to do that, so that was an honest sincere question. The anonymity was just tied in there but obviously not a requirement since you could sue under a pseudonym if need be.

          Apologies for any feelings my last post may have portrayed, but if any was apparent, it was not intended at all. And I agree this site is an excellent contribution and has a wealth of information, although you can provide more by suing your troll 🙂 we can all use this site for great information/research.


          • Sorry for misunderstanding, and I apologize for thinking of you that way. Any question asked sincerely is a legitimate one. I’ll get back to this discussion later, most likely tomorrow evening: this Sunday will start very early from me, and I was about to retire for today.

  5. Colette,

    I am curious why you and Lipscomb refused to answer Judge Baylson’s question as to whether you embed warning that your video clip is copyrighted? Your short vignettes look more like free promotional trailers. I am one of the innocent Does. I only know about X-Art because Lipscomb is terrorizing me. I had an open WiFi and live next to clubhouse where after school children hang out. I disconnected my WiFi and I even terminated broad band service. Now I only have a 3 GB monthly service from 4G provider. I do not view porn because I was molested as a child and I see the same predatory nature in porn, powerful people preying on very young and naïve girls/women (my opinion). I’m not judgmental about what other adults want to do. Porn just reminds me of my past and turns my stomach. So this is the problem, I am innocent and Lipscomb will want me to hand him many thousands of dollars. This could not come at a worse time, as I have little income as I am the caregiver to my parent who is dying of cancer. So truly I don’t have any time to deal with your vast team of lawyers.

    I think you are wrong. A great artist with great work will always have a strong base of fans willing to pay. The vast majority of people want to support artists. Many musicians post their work on the internet and ask fan to buy an CD to help support them and future work. The fans do buy the CDs and even fund new private label recording. The music and movie industry largely stopped going after the public because it is bad for business. That you stuff will get stolen comes with being on the internet. Playboy, Penthouse, and other porn business are surviving without suing everyone.

  6. Colette, why don’t you watermark your files so you can identify who the uploader is and go after them? I suspect that would be a lot easier and more effective than this shotgun approach. If someone’s file is found on bittorent, you revoke their membership and sue them if necessary.

  7. We are working on this, but unfortunately when one person uploads the file then thousands more get it as well. So we can keep catching the worst guys, but more keep coming out of the woodwork. It is crazy, as soon as I post an update it is on the torrents being stolen by thousands. It is so frustrating. I truly wish we could get the torrent sites themselves but it seems impossible. I hope people will hear about this trial and realize it is wrong to use the torrents for copyright infringement 😦

    • Realistically, people using bittorrent are not potential customers. Put your big girl panties on and realize it comes with the territory. Hustler, Playboy, etc are doing fine with much content being copied. 50,000 membership is really good for such a young business. You may have reached a level where you need real business management help. Lipscomb or any lawyer is not going to fix your business.

      It certainly is possible that bitorrent is actually growing your business. I really wouldn’t rule that out without a good analysis of where your members come from and have come to learn about your site.

    • ********************
      It is crazy, as soon as I post an update it is on the torrents being stolen by thousands.

      Just listen to yourself. You operate a members only site. You record the video, edit it, and post it (without markers I’m guessing) and someone steal it.

      There is only 2 ways this can happen. One of your members downloaded it and uploaded it. Or someone on your team copied it and uploaded it. At least the non criminal way this could have happened.

      The other criminal way is someone is operating a honeypot. IPP/Tobias declare they were provided an original copy of the works to compare with the torrent file. Could the leak come from IPP? Hopefully not otherwise it’ll prove they are indeed Gaurdaley which plaintiff is saying no.

      Also keep in mind plaintiff has claimed in motions that he monitors the ENTIRE Internet. Surely someone with such technology prowess can find the source of the leak.

      In either case I’m sure you don’t care or just ignorant to the situation. You hold the camera, you edit the video and put it on a server for members to login and watch the stream. Did someone break into your studio and steal the files?

      Just as you are destroying the lives of many families, fathers, mothers, sons, daughters, wait till you have a family of your own. You may have millions now but I believe in karma. All your deeds now will come to haunt you in the future. And when that happens, remember this moment. You brought it upon yourself.

    • Colette, I don’t think anyone is discounting that it is a big problem but has your litigation done anything at all to lessen the amount of your content that is pirated? If you had any evidence at all that suggested that your efforts were working then I think people might support you. On the other hand, if it’s not having any affect at all as most of us here suspect, then all you are doing is shaking down people for money. It’s really that simple.

    • Colette, watermarking would ensure that you could catch the person that buys your video legally, and then uploads it to the torrent sites. Moreover, are you familiar with the “six Strikes” law that was passed mainly to protect copyright works? This is what movie industry is currently using, it is given that repeat offenders will be warned and their service will be disconnected.

      You will not win the war on piracy, this is why movie industry sponsored the 6 strikes law. This is the cheapest and most effective way to combat piracy today. And carefuller when you are asking for more coverage, I have a feeling you will not be enjoying local CBS news crew trying to interview you for suing a 86 year old Granny for downloading gang bang “erotica” clips.

    • Follow the money. It perhaps IPP is initially seeding it so they can get paid to track it. You really need to track all activity to see who initially steals it and puts it on Bitorrent.

      • Why would they expend any effort in trying to track this info down? It’s easier to sue people. Lipscomb and X-Art are full of shit. They don’t want this to stop because they can make more money in their shakedown schemes. Pretty soon they’ll get cocky and turn into a Prenda. The lure of easy money is too great. Plus Lipscomb gets to beat his Homunculus chest and obviously compensate for his less than average endowment (in my opinion). I think this poster was right. Lipscomb was probably someone the other kids saw on the playground and said “Lets go throw rocks at him.” Well he’s showing them (and the rest of us) I guess. As someone who literally did have rocks thrown at me while in school, I can say I’d like to get even at the rock throwers, not the whole world. Lipscomb, do society a favor and take a long walk on a short pier.

    • So Colette can have the entire internet monitored for pirates and accurately identified (according to her German friends, who are immune from US law). But she can’t monitor her own website and determine which employee or member is stealing the work.

      I had a super lawyer who is very ethical look into these massive lawsuits across America. He said the legal system is broken and a lawyer figured out how to make money from it. However it really comes down to being extortion.

      It is one thing to have a business product stolen. It is much worse to be forced to pay $ 2,000 to $ 3,000 for something you never did but are being threatened with a lawsuit. A full trial for a defendant to prove innocence and win will cost $ 200,000.

      • Don’t kid yourself. It is at least $20-$40k now.

        Borrowing from Prenda saga. Welcome to the big leagues.

        If it is less than $5k most would settle, innocent or otherwise. Defendent lawyers are charging just as much for the prelim stuff. If it goes to trial, it is going to be as much as what plaintiff is asking.

        Let’s do the math. Innocent Doe fights and spend $40k. Looks like he’s winning, plaintiff dismiss the case or drags on with motions to delay/extend costing defendant even more money. Worse case, judge doesn’t buy it and awards $150k. So innocent doe is out $190k on the high end, $40k on the low.

        Or take plaintiff generous offer of $40k to settle and ensure damages is limited at $40k instead of $190k. See,
        Plaintiff is looking out for your best interest.

        Sickens me.

        Sickens me even more to see Collette quote Buddha.

    • Bad news X-Art – Colette

      When your site next updates within 30 minutes (or less) the content will still be up on TPB, KAT, EMP, PTnA, C! and hundreds of other torrent trackers. Lets not even mention hundreds of tube sites, file lockers and Usenet.

      Yes you got a nice paycheck out of this (if the people you won against can actually pay. Doubtful) but it did absolutely zero to stop piracy of your material. ZERO, ZIP, ZILCH!

      At the same time you most likely sued 10? 20? 100 who knows how many people who would never and have never downloaded your content. Most of these people settled as it was cheaper than proving their innocence so you STOLE from them.

      So are you proud of your efforts?

      Instead you could have fixed your systems so that you had a chance of catching an uploader. The person who originally shared your content unlawfully. This goes for all public forms of illegal distribution. Knock out a few uploaders with big judgments which your more entitled to as they actually made it all possible and people will think twice about being an uploader. Your content releases will take days or weeks instead of minutes. People will have another reason to join your site as they get the content sooner.

      Short term not as profitable but a lot less collateral damage. But i doubt you care about that in the least.

      P.S the chance you respond to this post is slim. I notice you avoid any post with hard moral questions like this. But this is the Internet and i can answer back

    • “We are working on this, but unfortunately when one person uploads the file then thousands more get it as well. So we can keep catching the worst guys, but more keep coming out of the woodwork. It is crazy, as soon as I post an update it is on the torrents being stolen by thousands. It is so frustrating. I truly wish we could get the torrent sites themselves but it seems impossible. I hope people will hear about this trial and realize it is wrong to use the torrents for copyright infringement”

      This sounds like a poor excuse. If the videos had a unique identifier in them you could go after whoever uploads them. I’m not an expert on Torrents (I didn’t know much before my case) but it does not look like there is much benefit or gain from being the person who leaks something. Once word gets out that you can track who is leaking them and are willing to sue those people I would imagine any other members would think twice about leaking something.

      On the other hand there’s probably more money to be made from suing 1000s of non members who may or may not be guilty (and who probably wouldn’t pay for your stuff anyways) rather then cutting the sharing at it’s source…so I can see why you don’t bother.

    • Your “art” is illegal in Saudi Arabia and other countries, please present yourself to those authorities for punishment for making it available there.
      And now you’ll tell me how their law doesn’t apply to you, and I’ll point out that DMCA is a US law with no bearing on sites not based in the US… and yet you held up the letter from TPB and were sad they were mean to you because they refused to do what the law required them to do.
      US law does not run the planet, and showing a letter from a well known website that mocks people who attempt to impose US law on them as “proof” of anything other than you wasted money sending a notice to someone not bound by it is deceitful.

  8. Colette,

    Thank you for posting here. Seriously. I respect you for not hiding behind “Malibu Media” and coming to tell your (X-Art’s) side of the story. I feel like there is finally some dialogue between our two camps. No one thinks stealing your material is ok and that there shouldn’t be penalties. I know you feel you’re only doing what you think is right in the face of these torrent downloads. However, the problem is that Keith Lipscomb has been incentivized to do his worst via the prospect of large amounts of settlement proceeds for himself (Does he get 90%? Is that figure right?) So he tells you he only goes after the “most grievous offenders”? Hmmmm…. you’d better have another talk with him about that. Let me tell you my story.

    I was a “target” of Lipscomb’s awhile back. Someone in my household or a houseguest of mine must have downloaded a few of your videos. Next thing I know, I’m being constantly harassed and threatened. At my office, at home, on my cell phone. They (whoever the nasty characters are that Lipscomb hires to do his dirty work) somehow found the number of my aging father and threatened him (telling him he needed to “turn me in” by having me contact them). My father was worried that I was in serious trouble. Explaining to family and friends why they were getting these calls… The whole thing made me sick. I couldn’t believe someone could legally do this to me. This hell went on for months. The calls became increasingly worse: “Pay us thousands of dollars. This is it, we’re going to ruin you. We know you did this”, etc… And I was rightly scared that I would be ruined, or at least lose all of my savings in a “settlement”. Think about what that is like for people, what Lipscomb is putting thousands of people through… this is evil. People here can back up what I’m saying. This is what trolls do to people. That’s why I continue to follow this site and other sites like it. I want to see Lipscomb and his ilk brought to justice.

    So think about what you’re doing with Lipscomb, I implore you from the bottom of my heart. I believe you when you say you don’t intend to do harm, but consider what’s been happening in your name. Why do you think so many people on sites like this are so dedicated to fighting copyright trolling? *It is not because we’re thieves and want free stuff* NOT AT ALL. Most of us have no issue with pornography either (I don’t). It’s because this is heinous legal abuse. It’s why we think Lipscomb is so horrible. He really is wrecking people’s lives, financially and relationship-wise like he tried to do to me (and he succeeded relationship-wise). All just in the pursuit of a fat paycheck for himself. Read defense lawyer Rob Cashman’s post linked at the top of this and tell me he’s wrong about what has been going on with Lipscomb (and read his past posts about people targeted by Lipscomb).

    It doesn’t have to be like this. Like SJD suggested, sending a warning first, ala six-strikes, would be a start. I imagine that would stop most people by waking them up– many people probably don’t think seriously about the consequences of what they’re doing online (but then Lipscomb won’t get his payday if you sent warnings… I’ll bet he’ll be adamantly opposed to this warning idea if you propose this to him!). Hell, as the original message in the post suggested, you would probably get a lot of the downloaders to subscribe to your site if you suggested this in the warning. What’s that old saying? You catch more flies with honey than a life-ruining lawsuit 🙂

    PS- There are good reasons why speeding tickets aren’t $10,000, even though that might stop almost all speeding, including that the fine is not proportional to the crime. In addition, everyone gets their day to be heard in court for free with a speeding ticket, not for thousands of dollars in lawyer’s fees. And $10,000 was never intended to be the “fine” extracted for infringement. It’s only by threatening people with the insane $150,000 per count (that was intended for commercial infringement) that Lipscomb can scare people into paying $10,000 (and again there’s that problem that legal defense is so costly…). This is not the way the justice system was intended to function in the U.S.

    PPS- I hope you’ll continue this dialogue with us. It’s good for your soul. Hear the other side of this.

    • Thank you for sharing your story. It is not a surprise that I receive a lot of emails (taking an occasion I want to apologize for non-answered mail: I physically cannot reply to 100%), and many tell the stories like yours. Here is one example of a clearly wrongly targeted family (since the author of email did not authorize me to reveal her story in a way it can harm her, it is only a short, neutral excerpt). It happened more than a year ago, when a “good lawyer” Lipscomb had been actively abusing Florida’s Pure Bill of Discovery.

      Because of the threats to my husband’s reputation, the damage that may have already been done, and the fact that I simply cannot afford to defend a lawsuit, we settled. I don’t have the release yet, though. I HATE that we did, but felt it was our only option because the threat of further damage was just too great. If they had called his employer it is possible he could have been fired. The stress of all this was just about to kill my husband. The harm they can do to people unmasked in Florida is pretty much unlimited since there is no federal case filed against them. I don’t think that anyone fully understands yet how horrifying this Florida tactic they are using is.

      There is more in this story, including scumbags calling her husband’s ill elderly father. I’ll try to obtain a permission to retell this story. And some others.

      Stories like this is an inconvenient truth that Colette tries to brush off. Stories like this is an explanation to a curious fact why these crazy people run these blogs at the expense of their time (and risking SLAPP lawsuits).

  9. If you send a DMCA to ISP of infringement you give the subscriber (who may not be the infringer) fair warning and are building a rock solid case against them if they do not end the infringement. That notice arrives in hours or perhaps one day. Very likely that is the end of the matter. They secure their WiFi, admonish their child or neighbor, or his or herself, delete the files.

    How it happens now is that IPP has to record infringement, eventually forwards info to lawyer. Lawyer eventually files complaint so he can subpoena ISP for records. So it can take a month and perhaps up to three months before the IP subscriber is even informed that there maybe an infringement taking place.

    So DMCA is best to stop pirating asap. Whereas the legal route makes you some money. However some day a class action lawsuit may end up taking everything you made. It will be you and your husband who are sued not Lipscomb.

  10. Unfortunately ISPs do not forward DMCA letters to their clients in a timely manner, I have seen them delayed by months, so be ware of the assumption that end users will receive the text portion of the DMCA notification within a few days, they may never see them if only one or two are sent. Also, I am certain that DMCA letters are putting a load on ISPs now given the increase in their usage.

    I am surprised that the plaintiff is posting here, it does indicate that this case may be atypical or at least different from others in which the plaintiff’s stance is far more adversarial.

    While I can’t imagine the ruin that the Doe served with a $500K sentence will face for the rest of their natural life. I also can’t necessarily neglect that they did commit a crime and then lie about it in court. I also can’t imagine that the theft of a few movies worth at most $100 on the market would necessitate such a high penalty. But back to the perjury and cost of discovery aspect this case seems to go around and around on both sides. This case seems to me to have two sides and it is clearly not morally black and white on either side.

    In an book titled The Seven Habits of Highly Successful People one piece of advice is to look only for the win-win result where both parties win, otherwise walk away. I see here that both parties lost. The defendant will probably live a miserable and desolate life for this and, even with the perjury aspect of this, I can’t see this as a punishment that fits the crime. I also can’t see them paying out very quickly and they may never be able to pay in full, therefore the large court costs incurred by the plaintiff will likely go unpaid. It seems to me that the moment the case got to the point of the defendant perjuring himself and the plaintiff spending hundreds of thousands of dollars to prove their case that there was no possible win for either side in this case.

    I also don’t think the internet won either, this sets a bad example for many who are innocent and defending themselves. Additionally this is bad publicity for the plaintiff may actually further hurt business more so than the individual downloading of the files by the defendant. This is a clear example of all sides digging themselves into a hole that ended up burying both, and I sincerely hope it does not set any kind of precedent that we must all conduct ourselves in such a manner in future cases, especially those where the defendant is innocent.

    The only saving grace here that I can see is forgiveness. I implore you Collete, you have won your case and proved your point before a public audience. So much damage has been done here to both sides that any hope of restoration is lost, however, there is still the chance for forgiveness. Will it destroy your business and or the lives of those under your employ to express forgiveness to a reasonable measure such that the damage to this individuals life can be reduced? Is there room here after such hatred for compassion and reason to be asserted?

  11. Colette files the most lawsuits in the porn industry against the public. So let’s not pretend she just wants to make a statement. Lipscomb is the one who avoids trials like the plague. Yes, they are costly but if you want to make a statement instead of shakedown the public that is what you do. You don’t have to sue close to a thousand Does in just the EDPA like Lipscomb attempted to do last year.

    A Google search of some of Malibu Media video vignettes returns a couple hundred thousand to a million hits. I suspect this is a pretty clear sign that someone is intentionally seeding the work(s). IPP does look like some kind of transformation of Guardaley, many of the same personnel. And we know Guardaley was seeding client files to generate traffic that they could record and get paid for.

    It is difficult to walk away from a monthly check stemming from settlements. Of which 30% may be from innocent people who are struggling to put food on the table.

    After all this time and all the money, it is odd that Maliibu Media doesn’t put a copyright warning in their work. And Colette could add a brief statement saying we are a husband and wife business. If you enjoy the video please consider becoming a member at our website and support future releases of our art. We hope you enjoy the video but the models need to make a living wage, so if you do enjoy their work please join our family by becoming a member. It doesn’t take much thinking to turn all the traffic into generating new members and revenue. Perhaps Lipscomb has convinced you that the road to a successful business is through litigation. That sure is self-serving and nothing could be more wrong. Check out Google and Facebook. It is all about traffic, generating positive public image, not suing and antagonizing the public.

    The definition of a good lawyer is not determined by their ethics or wins. It is defined by how much money they make in their practice for his or herself and/or the law firm.

    • Also, Colette, please review this affidavit (text copied for your convenience — emphasis is mine):


      I, John Doe, hereby declare under penalty of perjury, pursuant to 28 U.S.C. § 1746(2) that the following statements are true and correct:

      1. Approximately a year ago I received a phone call at my work from a person named Gerald Stern. Mr. Stern indicated that he was a representative of the law firm Lipscomb, Eisenberg & Baker, PL located in Miami Florida and that they had received information from my Internet Service Provider (ISP) through a subpoena request that my internet account had been linked — through my alleged IP address — to an act of unauthorized downloading of hardcore pornographic content through a BitTorrent program.

      2. Mr. Stern indicated that I was involved in a lawsuit pending in Florida state court that involved copyright infringement and that this was a serious matter. Mr. Stern further informed me that his firm had sued people for this type of activity and had made anywhere from $15,000 to $30,000 per client.

      3. Mr. Stern then proceeded to tell me that I probably wouldn’t want to see my name in the “Denver Post” and that this could happen by the end of the week.

      4. I informed Mr. Stern that I did not know anything about this and did not even know what a BitTorrent was.

      5. Mr. Stern continued to inform me that that my network was wide open so that anyone could come into it and get information from it. Mr. Stern indicated that “we” could possibly be looking at a criminal charge of “exposing minors to pornography” which would result in a criminal case being filed against me.

      6. Mr. Stern next told me that they (presumably the law firm) would be able to tell if I have been selling the copyrighted movie to others. Mr. Stern continued by telling me that if they are able to obtain my web surfing data from the data storage company (Latisys of Denver) they might be able to determine what other copyright materials I might have downloaded and sue me for that as well.

      7. Approximately a year ago I also received a letter from Mr. Keith Lipscomb, of the lawfirm Lipscomb, Eisenberg & Baker, PL located in Miami Florida. This letter indicated that an IP address that had been linked to my account through my ISP had allegedly downloaded hardcore pornographic content through a BitTorrent program without authorization. This letter indicated that my information had been subpoenaed by Mr. Lipscomb, and that I would be sued if I did not settle.

      8. Based on personal investigation it appears that, Mr. Stern is not an attorney, but works for a “call center” that is associated with Mr. Lipscomb and Lipscomb, Eisenberg & Baker, PL and Jason Kotzker of Kotzker Law Group based in Highlands Ranch Colorado.

      9. Based on personal investigation it appears that, names that are turned over from subpoena requests served on various ISP’s from attorneys such as Mr. Lipscomb and Mr. Kotzker are transferred to this “call center” where settlement representatives continually call and attempt to pressure John Doe defendants into settling for several thousand dollars under the threat of a lawsuit and public embarrassment and threats of criminal actions.

      10. I have been receiving harassing calls for approximately 5 to 6 months from similar representatives of Mr. Lipscomb and Mr. Kotzker. The harassing calls stopped for several months before beginning again. Many of the calls indicated that the law firm of Lipscomb, Eisenberg & Baker, PL, presumably through their representative counsel Jason Kotzker of Kotzker Law Group would file an individual lawsuit against me if I did not settle for several thousand dollars.

      11. At no time was there presented an opportunity to provide evidence of innocence.

      12. I have never downloaded any movies or other media content legally or illegally in my life.

      13. I have never downloaded nor used any BitTorrent software in my life.

      14. I have never financially benefited from anyone using my computer, nor have I ever encouraged anyone to ever download any movie or other content from any of my computers. If I was aware that such activity was taking place I would have done everything in my power to stop it.

      15. I am providing this declaration anonymously out of a genuine fear of retaliatory litigation. My signature has been attested to by my attorney, David S. Kerr who is a member in good standing of the Colorado bar (#4094 7) and has been admitted to this Court. Mr. Kerr is further in possession of my personal contact information. Should this, or any Court wish for me to provide additional information I will do so under seal. In addition, should this, or any Court wish for me to provide live testimony I will do so at the Court’s convenience.

      John Doe

      /s/ David S. Kerr
      Signature attested to by Counsel David S. Kerr

    • Fascinating. The actually infringer outright identified himself and admitted to downloading in a court filing and they refused to drop the charges against the subscriber.

  12. I’d like to hear Collette’s response to the assertion that people who were casually downloading x-art materials and get caught up in this may be a little smarter than they are, and may not just make it their mission to create an anti-copyright-trolling website, but also put that amount of effort into collecting, and sharing x-art material via bit-torrent using anonymous proxies.

    You like to suppeona ISPS for subscriber info? Well, we’ll just let you have to do that 25 times to 25 different proxy servers in 25 different countries. Good luck!

    The ill-will you create with these lawsuits cost you MUCH MUCH more than the initial “piracy” by people who weren’t going to pay you any money anyway. I’m positive that people are out there now purposefully trying to make your materials as available as possible for free via bit-torrent.

    • Missed adding: Besides the fact that x-art movies are like a throw-back to the 80s porn and 95% of the video is unwatchable. If at nothing else PLEASE STOP SHOWING THE CLOSEUP OF THE GUYS; FACES. Never understood why pornographers couldn’t understand that NOBODY, not even the women watching it, like to see that shot.

  13. Collette, I implore you to read this slowly, you might get it.

    “We are working on this, but unfortunately when one person uploads the file then thousands more get it as well. So we can keep catching the worst guys, but more keep coming out of the woodwork. It is crazy, as soon as I post an update it is on the torrents being stolen by thousands. It is so frustrating. I truly wish we could get the torrent sites themselves but it seems impossible. I hope people will hear about this trial and realize it is wrong to use the torrents for copyright infringement”

    Alright, I’m going to do this slow, so even Collette can understand.

    So, according to one of your other posts, your site is updated daily now. Fine. So one of your members (it has to be a member) uploads the video. Let’s say you have a unique ID for that video in place. That video hits torrents. Ok, so one (1) video out of THREE HUNDRED AND SIXTY FIVE (365) gets seeded to thousands of people.

    So you download that video from torrent. Get the unique ID. CUT that person’s membership. Then sue them for massive money because they’re doing it serially.

    That person no longer has access to the videos. And if someone else wants to take their place, they have to pay for a membership.

    And it happens again? Repeat the process.

    You can’t weed a garden by spraying it with weed killer. It will kill the flowers.

    Work is hard. The American Dream is hard. Owning a company is hard. Protecting what you produce is hard.

    It’s not supposed to be easy. Do the work, and I bet you 99% of the people here, on DTD, and the defense lawyers will no longer have a beef with you. And you’ll have a stronger company and a better business model to boot.

  14. “It is crazy, as soon as I post an update it is on the torrents being stolen by thousands.”

    Well, that either suggests a leak in your company, or members seeding it. Do you want members like that? Identify THOSE people and you stop it at the source and THEN and ONLY THEN can you say you’re making a statement.

  15. This fits my earlier post.

    Deal with uploaders and you may have a chance. Pick off a couple of random downloaders you work is being shared tomorrow just as it was today.

    Your current method is totally ineffective (its still being shared you haven’t made a dent) and hits plenty of innocent people in the process. The collateral damage is not acceptable.

    I hope anything you buy with money that came from an innocent person turns against you. If its food may it choke you. If its a car may it fail at high speeds.

    If its a computer may your name end up in a Hollywood movie file sharing case even though you didn’t do it. That would be pure justice there

  16. Why can’t they just encode a unique ID number on anything downloaded? There should be a law that says if your business plan selling online digital material doesn’t include some workable plan on how to identify/warn/stop the “original” person distributing your wares over the internets, you get a $1000 a day stupid tax and we all get to take turns suing you to eternal poverty for creating a litigation nightmare for the rest of us.

  17. I don’t really understand Collette’s position.

    We the content creators (I’m a mobile app developer, and my apps are pirated a lot) are interested in attracting more customers who are paying users. “Reducing piracy” as a goal only makes sense if enough people converted into paying users. Why? Because it costs to fight piracy. Even if all you do is monitor major sharing sites and send DMCA notices, it takes time which could be used for producing more content, therefore attracting more customers.

    And it is hard to see how the strategy of suing people would attract more customers. People pirate stuff for different reasons. Some won’t pay for content as a principle. Some would pay, but don’t have money. Some get kicks from getting for free something which others pay for. Very few would pay – for the vendors of pre-installed software on laptops the conversion rate is around 2% – because when forced to spend money, they’d make sure they get the best bang for their buck.

    I think that trial and the publicity around it is a HUGE MISTAKE for Malibu Media and X-Art. Let’s guess what the most likely the consequences would be:

    1. Media will get frenzy with headlines like “Porn pirate got hit with $500K verdict” and “Porn copyright troll won $500K in court trial”. Malibu Media and Collette’s name will be tied together there pretty tight. This is overall bad publicity for the company. RIAA didn’t get much popular after getting a $222K verdict.

    2. After it hits national news, everyone would know your downloads are tracked. Most people would fear getting caught, and would stop downloading your stuff from torrents. But this won’t help Malibu Media since none of them would become a paying customer. People don’t like being bullied, and it is not like there’s shortage of porn.

    3. Expect to get under much higher scrutiny than Prenda. There will be journalists investigating this stuff, who are professionals in doing so. When the public interest is high (and you can bet “porn” and “$500k verdict” would attract significant public interest), they’ll find out everything about it. Not that it is too difficult, just type “Malibu Media” in Google. And if there was any foul play involved, it will be brought to the light, because…

    4. … there is a strong anti-porn lobby here in the USA. They are vocal, they have powers and money, they own TV and newspapers, and they control large voting audience. Malibu Media just gave them a lot of ammunition to show how inhumane and cruel porn purveyors are. Passing another anti-porn ordinance would be significantly easier. I’m sure the Adult Entertainment Industry isn’t happy about it at all.

    5. As John Whitaker pointed out, the judge awarded $2,250 per infringement – and this is for an infringer who basically ad. Getting a $40K settlements

    6. Colette’s name would be remembered by a large amount of people. This may bite back really hard not only in the business (such as passing another anti-porn ordinance), but in personal life as well. If she ever has to have a jury trial, she may find a jury of her peers unsympathetic to her case no matter how good otherwise the case is.

    As I see it, it is all loss and no gain at all (realistically asserting the chance to get even the attorney fees back).

  18. Here’s a thing about this so called claim of “justice”, by those subjects pictured above:

    1. Several attorneys who were in my law class as well as my law professors, and some of IP attorneys who DON’T involve themselves with any of the types of plaintiffs discussed around this subject matter know the real truth of what’s behind this type of litigation scheme. I’ve discussed with over 100 of these IP attorneys and they unanimously agreed that they hold an exceptionally high standard of their clientele, and only decide to accept them if their case is truly about IP infringement. They firmly stated that they DO NOT and WILL NOT associate themselves with this type of litigation under any circumstances, however they may assist in the defence of those falsely accused. They also agree that this Bellwether case is a true miscarriage and absolute abuse of the legal system and the plaintiff’s attorneys have other motives. Oh, and they also think the picture they took doesn’t make sense one bit, and is rather observed as a joke and a huge contradiction.

    2. There are government agencies keeping a watchful eye over these plaintiffs, their businesses, their actions, and their associates. Anytime there’s a large court settlement that doesn’t involve a bonafide physical illness and/or injury, the IRS and some others will be on high alert. I think Dickie Scruggs et al. probably know (and probably already knew) this.

    3. The tactics plaintiffs used have actually reached agencies, organizations, and members of fringe associations of many types, who may have plans to make these types of plaintiffs regret their actions. I, myself, am NOT part of these “agencies, organizations, and fringe associations”, however since I became a target of a type of plaintiff discussed in this blog, I decided to spend part of my time off the internet and hit the streets in various places in the US by contacting several law enforcement agencies, journalists, as well as some groups of people affected. The span was very wide and what’s found on the internet was just a taste of how upset the falsely accused are.

    So the question is to those types of plaintiffs to ask themselves… Do you really know who you are? Do you really know who they are?

  19. What I would like to see an answer to is, the reply to the fact that several movies posted to a tube site, by X-art itself, and there for free download, by anyone and everyone that cares to download, are included in lawsuits? To me, that is just a honey pot there in the making. If it’s free to download on one website that doesn’t require an X-art membership, by the allowance of X-art, and has no requirements to who can and cannot download it, then by pure common sense and simple logic, it’s a free work, and can be shared period. To sue just because it’s on a torrent and not on the download from the tube, is pure bs.

    • Legally?

      Because a copyright holder has the exclusive right to reproduce and distribute its works.

      Just because a song is on the radio or a music video is on YouTube, it doesn’t give you a legal right to download it. I can stream movies on Amazon (many for free), but if I want to own them I have to buy them for that reason.

      If the movie is on YouPorn without authorization, you couldn’t be held liable for watching it anymore than you could be sued for watching illegal PayPerView in a bar. You’re not distributing or reproducing the work under the Copyright Act.

      However, I suspect (and I have no basis for this), that streaming sites probably pay some of the bigger porn producers royalties, like YouTube does with many popular artists.

      That said, it would be entirely different if the content producer placed their work on bittorrent initially, though. In which case, I think they have created an implied license.

      • Mr. Rushie,

        One can use a program or an add-on to a browser such that the video at these free sights can be saved as a file and replayed. I doubt the video host can tell if you are playing it or downloading it.

        So anyway the point is that one could easily get all of Malibu Media’s clips for free without ever using Bittorent.

        • Then why not just do that?

          I think you would at least have a decent shot at arguing an implied license existed. They would turn around and argue that it violates their rights to reproduction and distribution. But I think there would be good arguments on both sides.

        • The video host CANNOT tell whether you are playing the video or downloading it using special software. This is technically impossible.

          What disappoints me greatly is that there’s no real way to know whether the copyrighted content you’re receiving or purchasing is legally distributed. What if someone uploads X-Art movie to a torrent site and writes into the description that the movie is distributed by the X-Art/Malibu Media who is valid copyright holder? How would one know if it is true or not? After all, a lot of copyright owners distribute their work by using BitTorrent.

        • Mr Rushie,

          Well you ask the bazillion dollar question. Why are people using Bittorent to get MM videos when they can view or get them free all over the internet? Perhaps, people may not know X-Art. They are only downloading via Bittorent because of catchy title and ratings? Perhaps, there is nothing to indicate it is copyright protected. X-Art does not embed copyright notice in their videos (I think). Yet Lipscomb acts as though this is intentional infringement. Is it intentional?

          Another issue. What if someone downloads it be mistake. for example wrong clip of mouse, bad vision, The person see it in their download files, do not view it, and immediately delete it?

          Also Lipscomb acts as though all who downloaded most has also distributed because that is how Bittorent clients work. I seriously doubt this. Clients distribution can be blocked by firewall and even if it isn’t, the download typically takes most of bandwidth, allowing very little transfer rate for upload. After the download(s) complete, the uploads will take as much bandwidth as it can. So a user could exit Client as soon as download completes and never distributed a single full copy.

          Anyway this is just touching some of the nuances of Bittorent that I doubt any Judge knows about.

      • Jordan, when you are watching the streaming movie, you are in fact downloading it. “Streaming” is another word for “sequential downloading”. The protocol may be different here (although it is possible to stream via BitTorrent as well), but it doesn’t matter for the Copyright Law. Same as when you see the pictures on the Web, you are downloading it on your computer. The only difference is that you are not saving it to your disk (and even in this case it may still end up on your disk if your browser decided to keep it for some time in the browser cache).

        Your analogy is flawed (same as your license plate vs IP analogy; I’m sorry, you may be a great lawyer but your understanding of technology could be improved). With the TV a regular viewer has no control over the content being distributed between the TV station and the bar’s TV. Even if you turn your TV off, it doesn’t stop the distribution, “Breaking Bad” scheduled for 7pm will start at 7pm even if your TV is off, or if you want to see sports instead.

        However when one requests a specific movie to be streamed from the server, this one is in control of what is streamed (download) from the server, as he has the power to initiate or terminate the transfer. In fact there is little, if any, difference between clicking on a YouPorn link and clicking on the ThePirateBay link. Indeed, some (but not all) works on ThePirateBay are not authorized by the copyright owners – but this is the same with YouPorn. Hey, even Amazon had distributed copyrighted work in past without license (google the 1984 automatic removal from Kindles).

        So I don’t see it as a major difference. If I missed something, could you kindly explain?

      • YouPorn has a download button on every movie. Amazon and YouTube do not, and expressly say that downloading violates their TOS. On YouPorn, it is encouraged.

        Yet the porno trolls Collete Pelissier and Brigham of X-Art whine and complain about their losses (with profits going up for their business, how odd), and how people are watching and sharing their files for free….

        Maybe they should look in the mirror to find the source of their problems.

  20. The only winners in all the BS trolling is the lawyers. They are money hungry; that is why they became lawyers in the first place! Lawyers aren’t helping the world.

    Pornographers, I mean erotic artists, stop feeding the greed! The more money the lawyers get the more ugly they get, and they make you more ugly in the process.

    Final note. Be happy with what you have. You might F with the wrong person and wind up six feet under. It’s not worth it.

    • Erotica is what u see on skinemax, x art is full on hardcore all incuded pron, they just have nicer cameras and younger girls than your avegage Ron Jeremy flick.

    • There are a lot of places in Eastern District of PA that I would not want to stroll through in daylight while minding my own business.

      Even if Colette and Brigham got all their stuff secure (which they will not do), they still have to compete against all the free porn all over the internet.

      The things fools will do for money.

  21. I’d have a lot more respect for Colette and Brigham if they would go out and rob old ladies.

    Bandits can be respected and admired but not when they hide behind shell corporations and lawyers.

  22. eventually they will encounter a Doe willing to pursue this all the way in court. And then the pretty little house of cards will crumble

    • And given X-Art, Malibu Media, and Colette Pelissier and Brigham Field’s assets, you’ll also have one wealthy Doe.

  23. I’m not one for documentaries. I’m also not one for endorsements, but I’ve watched this:

    and this:

    I’ll be the first to say they’re not the “greatest” or the “worst”, but I do see useful and constructive thoughts to be drawn from these films.

    Now for some satire, but first, this…

    (DISCLAIMER: What’s written below is solely for the intended purpose of humor for constructive thought. It is for thought and any occurrence or similarities are strictly coincidental and I cannot be held liable for simply thinking of future possibilities).

    So, maybe something like?:

    Injustice the film 2: Prendacalypse
    Injustice the film 3: Directions to Malibu lacking a moral compass

    or maybe this?:

    Hot Torrent: I left my $20 2oz. artisanal smoothie on top of the server and some janitor needs to be sued for leaking it on the interwebs.

    or this?

    Mata Coffee (Informed viewer: “No stupid! Not the real one, the one that rhymes with something else!”)

    [Note: If the question arises, I’m 100% in solidarity with SJD, DTD and those who know the truth in a day and age of a highly fragmented and shattered legal system. I’m NOT an attorney yet, but did recently return to law school and earned my JD and studying on my free time to pass my first bar exam. Boiled down, I’m also a highly qualified, degreed engineer and a former “doe” who was caught up in this mess and will not forget (and certainly not forgive).]

    • They filed 16 new individual suits here in Eastern District of Pennsylvania last month.

      It looks like the new trend is to go after individuals accused of massive amounts of infringement. I suspect that will be the trend moving forward.

      • Greed is the worst adviser when it comes to reducing speed and gradually stopping when driving into the chasm. Let them DUI (drunk from the perceived victories). From many signals I receive I can make a reasonable conclusion that Lipscomb & Malibu have pissed off some very> powerful forces. So far my gut feeling turned out to be true in 80% of cases.

      • I don’t see a trend in selection towards massive amounts of infringement. I just read a dozen recent Malibu complaints from RECAP and while three of them were for over 30 downloads, three more were for 10 or fewer.

        In a way that’s that’s a step down from what Lipscomb was doing last year with their site rip monitoring. Those accusations would encompass 20-40 titles from a single torrent.

        To my knowledge Lipscomb has been settling for something in the order of $1000 per download. If that’s the case, 10 or 15 downloads will already tap a lot of people dry such that there’s no point in holding back on the suit for that to ripen up to 40 or 50.

  24. What people are searching for? Search terms that led to this site. I selected only Lipscomb/Malibu related phrases for the last 3 days.

    malibu media
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    “malibu media” and “copyright”
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    malibu media llc v. john doe (case no. 2:13-cv-02858
    x-art bittorrent lawsuit
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    copyright case philadelphia x-art
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    brigham field producer
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    colette field, who owns malibu media
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    kotzker troll individual motion
    the bellwether trial (malibu media v. does
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    bit torrent fiore christopher
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    baylson malibu minute
    how do i fight malibu media colorado
    motion to quash subpoena colorado
    brigham field
    “malibu media” and “philly”
    x art troll
    x-art philadelphia copyright
    copyright troll colorado
    “colette pelissier”
    bellwether trial june 11
    malibu media llc lawsuits in illinois
    “brigham field” sex
    “deborah baker” attorney
    malibu media lawsuit trial pennsylvania
    patrick collins 2013 copyright infringement cases erotica
    copyright troll patrick collins
    colette pelissier brigham field
    chris fiore pa
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    pa bellwether case
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    malibu media fraud
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    malibu cases
    lipscomb/malibu media

    • See, Lipscomb? You may secure a funny paper from a judge stating you are not a troll… But if you look like a troll, sue like a troll, and talk like a troll, then you probably are a troll.

    • Well done SJD. The search shows more of the plaintiff’s and their counsel’s “open closets” so more of the public becomes aware of the disgusting rank of dirty laundry inside.

      Speaking of that type of “dirty laundry”, I wonder what it’s going to be like when I bring attention to Feeding America about a recent donor who appears to have a donation maybe soiled by the fact that the money may have “adult content” permanently embedded in it? Can that money truly be laundered?

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