We wrote about this case (actually 11 cases consolidated into a single one): Judge Stephen Crocker smelled a troll, halted the proceedings, and issued an order to show cause why Malibu Media/X-Art/Lipscomb shouldn’t be sanctioned for supplementing their complaints with a malicious exhibit (infamous “Exhibit C” that lists unrelated infringements that defendants purportedly committed). Malibu/Lipscomb responded to the order on 6/26/2013 (of course bragging about the Bellwether Pyrrhic victory). Shortly after, EFF (via Erin Russell) asked for leave to file an amicus curiae brief:
In the instant cases, defendants are in danger of being coerced into unjust settlements by the threat of public embarrassment before having a reasonable opportunity to be heard. In fact, the conduct that led to the Court’s Order to Show Cause – attaching to complaints a list of highly embarrassing pornographic movie titles for which Malibu is not claiming copyright infringement – creates a strong incentive for defendants to avoid appearing before this Court. Raising defenses, no matter their merit, would risk a defendant’s identity being revealed and publicly associated with the scandalous titles listed in “Exhibit C.” Given the circumstances, the defendants are inadequately represented at this stage, though their rights are very much at stake.
EFF will assist the Court by providing a response to Malibu’s briefing, including placing Malibu’s conduct in the context of judicial responses to the broader phenomenon of BitTorrent litigation and providing authority supporting the Court’s contention that Malibu’s conduct has violated Rule 11. In order to respond thoroughly to Malibu’s 30 pages of argument and numerous declarations, EFF respectfully requests that it be allowed to file its brief on July 15, 2013, or on such other date as the Court orders.
Prenda’s Lipscomb’s opposition to this request is very weak in my opinion, and in addition to usual attacks on EFF’s “pro-piracy agenda,” is largely based on a bizarre argument that EFF cannot provide any valuable input because…
…no one at the EFF is a trained psychologist who has interviewed Plaintiff or its counsel for the purpose of forming an opinion about the purpose behind attaching Exhibit C.
The purpose of a particular troll’s sleaze was never discovered using a psychiatrist. Any court makes its determinations based on facts, arguments by the parties, and input from non-parties that have experience in a particular area. It is ridiculous to state that EFF has no expertise in this type of “litigation,” and it is an insult to the judge’s intelligence to assume that he either needs a mind-reader or should rely solely on the plaintiff to make the right conclusion, especially if that plaintiff has the audacity to claim the monopoly on truth:
…since Plaintiff and its counsel told the whole truth about its purpose, the EFF simply will not be able to contradict any of the material statements in the declarations Plaintiff submitted.
Ironically, while insisting that EFF would not know trolls’ intentions because they are not psychiatrists, Lipscomb & Co know exactly what EFF’s brief will and will not be about:
The EFF cannot assist the Court in providing competent testimony about Plaintiff’s purpose for attaching Exhibit C. Instead, all the EFF could possibly do is provide anecdotal ad hominem attacks and inadmissible speculation about the purpose of Exhibit C. This would merely district the Court from its task and unnecessarily burden Plaintiff who would have to respond to irrelevant and inadmissible red herrings.
In conclusion, I’d like to draw your attention to a document that was recently filed by Morgan Pietz in Michigan (Malibu Media LLC v. John Doe, MIED 13-cv-1220). This is a declaration that details the communication between Pietz and Lipscomb’s Shakedown Officer, Elizabeth Jones. Although the dialogues took place a year ago, the methods are hardly changed in principle. You will see the proto phase of what would become “Exhibit C” — namely, a tactic of initially accusing a victim of a single download, but when he contacts the troll, twisting his arms using additional “evidence.” Do we really need a psychiatrist to understand the dark, rotten souls of Lipscomb and his goons? I wouldn’t peek into that darkness voluntarily, simply because I value and want to preserve my faith in humanity.