Guardaley | X-Art

The emperor has no clothes: a Doe moves for summary judgment in a Malibu Media lawsuit

Summary judgment:
n. a court order ruling that no factual issues remain to be tried and therefore a cause of action or all causes of action in a complaint can be decided upon certain facts without trial […]”

In what I consider to be a significant development in the ongoing saga of the rise and fall of the porn copyright extortion business model, a defendant has made a motion for summary judgment. To the best of my knowledge, this is the first one and it bears deserving of a quick overview.

The lawsuit is pending in the United States District Court for the Western District of Michigan (1:12-cv-00617) and is entitled Malibu Media v. Roy. Significantly, it has been assigned to the Hon. Robert J. Jonker who last year eviscerated this and four other Malibu Media “swarm joinder” lawsuits, in part, because:

While the Rule 20(a)(2) permissive joinder rule is to be liberally construed, the Court does not believe it encompasses the “six degrees of separation” argument on which Plaintiff’s theory relies; namely, that each infringer is at a minimum connected to every other infringer in the swarm through any number of upload/download transactions occurring between any number of users over an indeterminate amount of time.

This determination severed the multiple “John Doe” defendants leaving the first John Doe in each lawsuit to bear the burden of Malibu Media’s settlement extraction process.

Despite Judge Jonker’s obvious displeasure at Malibu Media’s extortionate porn copyright infringement business model, its local counsel, Paul Nicoletti, decided to soldier on, which is where the story picks up. The remaining John Doe defendant was served with a summons and complaint in the Fall of 2012 and his/her attorney made a motion to dismiss the complaint on multiple grounds:

  • A. Plaintiff has not pled sufficient facts to allow the court to draw the reasonable inference that the defendant is liable for copyright infringement.
  • B. Plaintiff fails to allege facts that defendant committed a volitional act of copyright infringement.
  • C. Plaintiff’s supporting declaration evidence is inaccurate, misleading, and fails to link defendant to the alleged acts of infringement.
  • D. Counsel in identical cases have admitted that there exists a significant risk of misidentification.
  • E. Plaintiff’s allegations are likely unsupportable under Rule 11.

On 1/3/2013 this motion was denied with no reason given, with both parties being directed to proceed into the discovery stage of the litigation, in which both sides are to probe and examine the evidence of their adversary. On 01/25/2013 Malibu Media made its fairly standard motion to strike the Doe’s affirmative defenses, which Judge Jonker denied on Valentine’s Day 2013, in part, because:

Whether Defendant ultimately prevails on his affirmative defenses depends, at least in part, on the answer to currently unresolved fact issues. Discovery and dispositive motions are the best way to resolve those issues.

In other words, plough through discovery and then move for summary judgment as to liability or the viability of the affirmative defenses. However, Malibu Media’s business model is to terrorize Does into quick settlements in lawsuits, which rarely get beyond the pleadings stage. The next stage, which is discovery, does not fit into this business model because it is slow, time consuming and expensive. Accordingly, it would appear that Malibu Media’s attorney did not vigorously pursue discovery, which caused him on 8/30/2013 to make a motion to extend the discovery deadline, so he could examine the Doe’s computer hard drive to see if it had his remnants or entire files of Malibu Media’s hardcore pornographic videos. Judge Jonker denied this motion on 9/3/13:

The Court does not find good cause to extend the Case Management order deadlines. Discovery has been open for 8 months. There is no explanation of good cause for waiting until the day before close of discovery to address Defendant’s hard drive. The motion to extend Case Management Order deadlines (docket # 39) is DENIED.

With no evidence other than Malibu Media’s “expert,” who glanced an IP address downloading its porn¹, Defendant (via his attorney John T. Hermann) moves for summary judgment on liability:

In May of 2012, Plaintiff computer technicians identified seven IP address participating in an internet “swarm” that was distributing Plaintiff’s copyrighted works. Plaintiff relies on the declaration executed by Tobias Feiser (Docket Entry No. 4-2 ¶ 20) (hereinafter “the Feiser Declaration”.) The Feiser Declaration, however, provides no information or details whatsoever as to how Plaintiff intends to prove that Defendant as opposed to someone else having access to his internet service committed a volitional act of copyright infringement. Accordingly, Plaintiff’s claim of direct infringement is based on the assumption that Defendant is the actual person who utilized the internet account for the aforementioned acts. Similarly, the Feiser Declaration fails to provide any information demonstrating Mr. Roy’s knowledge or awareness of what was occurring over his internet account. Without any additional information Plaintiff is unable to show that he materially contributed to infringing conduct of another — a necessary requirement for contributory infringement.

This is of course the introductory summation. The motion is embedded below, which makes for some very interesting reading.



¹Assuming that the “expert’s” software is 100% reliable, which is questionable by itself, this IP address does not necessarily belongs to the infringer, but merely to a person who pays the bill.

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14 responses to ‘The emperor has no clothes: a Doe moves for summary judgment in a Malibu Media lawsuit

  1. The only thing that can explain such half-a$$ operation (My opinion) is that these cases were NOT designed to go the distance. No surprise there – Yes I’m preaching to the choir. The business model is to generate settlements as quickly as possible and then move one. Malibu Media/X-Art/Lipscomb must feel like they are caught in a “Catch-22” situation – Damned if you do; Damned if you don’t. Yes copyright infringement does happen, but to run this operation head long into a wall is just stupid. Not that I want them to stop doing it – It is a great show. In the 8 months, Lipscomb could have set-up and conducted the forensic analysis of the systems. Hell, a quick-look at the forensic images would have told you if the media was there, any other media (Exhibit C, etc.), BT system files, or that a system have been cleaned. If they found evidence/indicators on particular system, a full detailed analysis could be accomplished. Most people are not that good to get around a seasoned forensic examiner. So what should Lipscomb do if an examination fails to disclose any evidence to support their claims???? IMO – Back out of the case and pay the defense. Now this is going to cost them some money, so they drag it out hoping for something to change. Really!!! I believe Lipscomb and the other Trolls know this but are afraid it will set precedent for others. Maybe. The fact is, that if you run enough of these cases, you are going to lose eventually. No you (Malibu Media/X-Art/Lipscomb) are not exactly like Prenda – but that doesn’t mean you are a White Knight either. IMO you are just a Troll of a different color. Have fun with this one fools!

    DTD 🙂

    • It seems like a lack of good judgement is what makes trolls trolls. They could have quietly dismissed this case with prejudice and gone on to try and find other marks who don’t fight. The case has gone on over 15 months.

      It seems when the trolls encounter problems, they expect the tactics that have worked before to work again, no matter how outrageous.

      Here’s the lawyerly response to one of “Plaintiff MALIBU MEDIA’s Interrogatory questions” in one section, mirrored in several others:

      “OBJECTION: Defendant objects to the nature of this interrogatory in that it is not related to the instant action, is overly broad, unduly burdensome, and part of a calculated strategy intended to threaten Defendant with an intrusive invasion of unrelated personal information as retaliation for his failure to submit to Plaintiff’s extortion tactics.”

  2. It would be nice to see the attachments that went along with the motion, but it appears they haven’t been recapped yet. (Hint, hint to someone with a Pacer account).

      • I’m not trying to get into a pissing match with anybody. You have no idea what I might or might not have contributed to any cause. I respect some comments and information you have provided in the past. I will just leave it at that.

  3. For anyone who is interested the attachments are now available on the archive. Thanks to whoever RECAPped them.

    Click to access gov.uscourts.miwd.70867.41.2.pdf

    is the answers to the interrogatories. I’ve seed the questions before, but this is the first time I have seen someone’s answers. Attorney Hermann does a very nice job of legally saying, “ain’t none of your business” on many of the questions.

    • Those answers contain an implied threat: Any more nonsense and I will move for sanctions since the questions are improper.

  4. Whoops, it looks like whoever did the redaction in that doc was unaware of Adobe’s “copy and paste to see redacted text” bug.

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