Guardaley | X-Art
Copyright troll Mary K. Schulz is busy doing damage control
…in its current form, Exhibit C is struck from the complaint in each of the above-captioned cases and counsel for plaintiff Malibu Media, Inc. is sanctioned $200 in each of the above captioned cases for a total of $2,200, to be paid to the clerk of court.
For the reason yet unknown, Lipscomb divided his Midwestern turf into two parts. Prior to November 2012, the central US was terrorized by Paul Nicoletti alone. Currently, Illinois and Wisconsin are curated by Mary Katherine Schulz, and Nicoletti continues his racket in Michigan and Indiana.
Since then, Schulz helped Lipscomb in filing of 120 lawsuits, initially several-Doe ones (about a dozen Does each), but recently — only individual cases: 44 in ILND, 37 in ILCD, 28 in WIED, and 11 in WIWD. The latter group (those 11 cases) was the spot where the scythe hit a stone, and I believe that this is the beginning of Lipscom/Malibu shakedown campaign downfall.
It is not clear from the order wording if Schultz was sanctioned alone or Lipscomb was affected by the order too. Who exactly was slapped on the wrist is beyond the point anyway: the entire Malibu/Lipscomb shakedown machine was severely damaged. Regardless, Schulz has acquired some additional headaches.
In one of the ILDN cases (Malibu Media LLC v. John Doe, 13-cv-50287), District Judge Frederick J. Kapala issued a short and terse sua sponte order only five days after the complaint was filed:
Plaintiff is ordered to show cause in writing within the next 21 days why it, and its attorney, should not be sanctioned in accordance with Rule 11 for the same reasons set out by Judge Conley in the Western District of Wisconsin in that court’s case number 13-cv-205-wmc, et al.
…which means that the infamy of Malibu Media/Schulz/Lipscomb travels from courthouse to courthouse much faster than it used to.
Right after that order, Schulz became super-busy filing motions to seal the frivolous Exchibit C in Illinois and Wisconsin¹ cases:
As you see, this motion vaguely promises more detailed explanations and reiterates the same “arguments,” to which Judge Conley reacted so furiously:
Malibu Media’s denials do not pass the smell test, and any denial of improper motive by its counsel does not pass the laugh test.
I see it as a very desperate move, and obviously Judge Kapala² sees it too.
It. Won’t. Fly.
Update
10/16/2013
On 10/15/2013 EFF (via attorneys Kurt Opsahl, Julie Samuels and Erin Russell) chimed in asking the Court to allow an amicus curiae brief. The proposed brief is attached:
Not much can be added… I agree with the following opinion on Twitter:
@DarkMoe3 @Raul15340965 @EFF well done. The only question is the extent to which MM will be sanctioned. Judge knows this is 2nd offense.
— Zeno Elea (@Zenofyle) October 17, 2013
¹ I randomly checked the dockets: it seems that out of the three districts where Schulz trolls, she has been filing these motions only in ILND and WIED, but for some reason not in ILCD (I don’t mention WIWD, where Lipscomb is done, and ILSD is so far an uncharted territory for Malibu).
² Sadly, while some judges definitely talk to each other and their clerks are diligent, others seem to be busy and/or uninformed. At least in two cases in WIED (13-cv-00851 and 13-cv-00781), Magistrate Judges William E. Callahan and Nancy Joseph have granted motions to seal without much investigation.
Fight © Trolls 
The queen of the swarm calls, and at once the army of cockroaches scurry frantically from the light – and it’s not even good scurrying. “Your Honor, don’t listen to that naughty Judge. We wanted to encourage you into throwing the book at the defendant by making him out to be a slovenly, depraved pilferer of fine art that we don’t produce, not intimidate him. Please really throw the book at him and don’t think badly of us. Sprinkles on top.”
So, Colette – still think Lipscomb is a “good man and excellent attorney”, do you? I am certain he appreciates your blind faith in his ability, hence the scathing results he’s delivered for you. Hell, if he offered to sell you the Brooklyn Bridge you’d probably take him up on that; you’ve got the money and the (lack of) brains to match.
OK, suppose Lipscomb adjusts his strategy once again and there’s no Exhibit C from now on. Does it make Doe’s life any easier? I don’t think so. Looks like a minor problem to me, pretty far from being “severely damaged”
No doubt, he will adapt as he has been always doing. I never said that he is not smart, he is (yet arrogance and hubris poison any intellect). Surely he’ll come up with a new sleaze. But his reputation among judges has been damaged. That’s what I meant. It is very difficult to built a reputation, much easier to ruin it, and in nearly 100% of cases this process is irreversible. It’s a huge leap from Judge Baylson’s attitude and tone towards Lipscomb to Conley’s. Re-read Conley’s order and pay attention to the vocabulary he uses: it’s no joke, and if Keith was not so delusional and arrogant, he would shit his pants right away and ceased his activity. Many smarter and not-so-greedy trolls knew when to quit. Abramson, McDaniels, Meier… the list is long. Steele/Hansmeier did not quit timely, Lipscomb won’t voluntarily quit either, that’s why his downfall will be painful. Unfortunately it takes time and won’t happen soon.
3 years ago I would also said “meh,” but knowing the legal world a bit better now, I say it’s big deal. It’s more subtle and emotionless world, the linked article in Law360, which compares Lipscomb to Prenda is unusually harsh for this publication by lawyers for lawyers, according to attorneys I talked to.
Alas, the wheels of justice are too slow, but they do move and will eventually grind Lipscomb/Malibu.
Rhetorical question: did December 2012 letter to MN courts from Godfread, when the name of Alan Cooper had surfaced for the first time, “severely damaged” Prenda?
Well, let’s hope you are right.
Here is what I think of Mrs. Shulz’s explanation of why Exhibit C was used.
Mrs. Shulz claims:
(a) assist Plaintiff to identify the infringer;
(b) allow an innocent doe defendant to identify the infringer and tell Plaintiff the identity of the infringer prior to being served;
(c) assist Plaintiff to prove that the Defendant is a BitTorrent user;
(d) assist Plaintiff to prove that the infringer resides in the subscriber’s house;
(e) assist Plaintiff to prove that the defendant had knowledge of the infringement;
(f) assist Plaintiff to defend against motions to dismiss brought pursuant to Fed. R. Civ. P. 12(b)(6);
(g) require Defendant to either admit or deny the allegations;
(h) bring Exhibit C within the scope of discovery topics associated with the third party infringements, including possible DMCA notices, which may be relevant to proving its case;
(i) avoid any accusations of fabrication by opposing counsel after Plaintiff has received the identity of the Defendant.
Here is what I think:
(a) Maybe. If you actually do an investigation. Otherwise it is simply useful to scare the ISP subscriber into settling.
(b) Maybe. If the ISP subscriber does not know who did it, they can’t tell Plaintiff. Example – A visitor to the residence uses the house WiFi connection (with his laptop) – BT is up and running – The ISP subscriber doesn’t know this. Months down the road Plaintiff asks who did this on this date/time. ISP subscriber doesn’t know. AND I love the last part “…prior to being served;” THIS indicates Plaintiff/Troll will serve an ISP subscriber after conducting NO other investigative work other than what IPP Limited tells them – Sad Sad Work boys! This is a scare tactic plain and simple.
(c) Maybe. If Plaintiff does some investigation and can show some linkage between what is on Exhibit C and who they think is the actual infringer. Note: With that logic, If they name the ISP subscriber and Exhibit C doesn’t link back to the ISP subscriber, doesn’t it “disprove” he/she is the actual infringer???
(d) Not really. Even if the dates of infringement and other BT activity are spread out, it could also be a neighbor or other unauthorized user of the WiFi Internet connection – was it open. ALL it shows is that the public IP associated with the ISP subscriber had some sort of BT activity. It does NOT show that the infringer resided in the residence. Stupid.
(e) Now this one is really stupid. Of course the person running the BT client knew what was going on. BUT – The investigation (if they ever do one) has to show who the actual infringer is – ISP subscriber does not automatically equal infringer.
(f) Fed. R. Civ. P. 12(b)(6) is a defense claiming a “failure to state a claim upon which relief can be granted.” Another stupid claim. The claim in these cases is copyright infringement of Plaintiff’s works, NOT some other work that Plaintiff does not own the copyright to OR even done the research to show each item on Exhibit C is an infringement.
(g) No it doesn’t. The allegations are for copyright infringement of Plaintiff’s works, NOT a non-party to these cases (Non-Malibu Media owners of the works in Exhibit C).
(h) Wrong again. Plaintiff can still bring up the Exhibit C activity in Discovery. There is no need to make it publicly available.
(i) Really? Fabrication claims can be made at any time and the way you handle that is by placing your “Expert” on the stand and letting the judge/jury assess his credibility, methods, training, experience, and evidence he/she collected.
DTD 🙂
I still d not understand why defense attorneys are not raising the privacy violations for the Exhibit C?
If a giant like Google can admit to privacy violations, porn troll like Malibu Media should be an easy win for the defendants. I am referring to the 7mil settlement that Google had to pay for hacking into unscripted wifi signals from their google car and collecting data. Malibu is essentially using a wire tab on specific IP addresses, and as far as I know it is a violation of privacy.
http://money.cnn.com/2013/03/12/technology/google-privacy-settlement/index.html
The elephant in the room is the question: Does Exhibit C run afoul of Federal and State wiretap statutes?
That was one of the first questions I asked my lawyer. He said it’s perfectly legit and admissible, although he couldn’t predict judge’s reaction.
no, because there is no wire tapping here at all.
if you are using a bittorrent client to download something from a public tracker then anyone can connect to that tracker and see the IP addresses of all the other clients connected to it. if someone is monitoring lots of different torrents they can fairly easily build a database of all the IP addresses and see if one address shows up in different logs.
One thing that people seem to not understand is that downloading torrents is not an anonymous or private thing. If you can find a tracker to download something then so can the trolls.
Who said this is not being considered?
In listing her reasons for including Schedule C. Ms. Schulz missed the most important one:
j. We didn’t expect you to know about Judge Conley’s ruling.