Guardaley | X-Art
Defense counsel: Malibu Media’s lawyers are a trolling enterprise
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I am the broom that must sweep the court clean of such filth as thou art. | |
| William Shakespeare |
On Monday 10/7/2013, a very powerful motion to quash was filed by a Michigan attorney Eric Grimm in Malibu Media v. John Doe (MIWD 13-cv-00893), a case in the myriad of shakedown lawsuits filed by Keith Lipscomb via his local in Michigan Paul Nicoletti. This is not the first time Eric Grimm draws his sword to defend an extortion victim. Remember Prenda’s AF Holdings v. Ciccone (MIED 12-cv-14442), the only collusive lawsuit filed by Prenda in a federal court? As many other reputable Doe Defenders, Eric Grimm intervened in this mockery of justice.
This time Grimm calls out Lipscomb’s abuse of the ex parte procedure, reminding the judge that the adversarial process is at the very core of the US justice system. Filing a one-sided ex parte motion to discover the identity of a Doe, a motion that conceals a lot of objective facts unfavorable to the troll, is, to put it very mildly, improper:
[…] When a filing is made on an ex parte basis, however, there is no adversary to give the Court a more balanced understanding of all the facts. Accordingly, a different and more rigorous standard applies: “(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts that are known to the lawyer and that will enable the tribunal to make an informed decision, whether or not the facts are adverse.” MICH. R. PROF. CONDUCT 3.3(d) (emphasis added).
Grimm enlists what, in his opinion (and I 100% concur), are the truths that have been omitted by Lipscomb/Nicoletti. It does not make sense to quote all the 26 bullet points: each of them is noteworthy, and together they nicely summarize that trolls (Lipscomb’s in particular) have forgotten about their Oath of Admission to the Bar, and have been using courts as a robbery weapon for years.
Grimm gives a potent overview of the trolling phenomenon history, mentioning an instance when Lipscomb proceeded with his extortionate attempts against an innocent defendant. (Grimm does not point to the most egregious Lipscomb’s case, which I can’t help mentioning.)
Again, every paragraph is worth quoting, so I better refer you to the document: this is an epic motion.
Deterring infringement by suing only the wealthy
In one of the letters to the defense counsel, Paul Nicoletti responded to defense’s claim that Doe has limited assets:
Eric,
This isn’t possible. My client has developed a sophisticated analysis for these purposes which not only include a basic current asset search but also looks at the Defendant’s earning power over a 20 year period, the strength of our evidence when correlated to the subscriber household, whether the Defendant is sophisticated within the realm of IP (you’d be surprised how many IP lawyers end up as Defendants themselves), as well as a host of other factors.
We know that when trolls don’t poison the courts by frivolous filings, they are busy redefining the term “Chutzpah.”
So yes, a troll himself essentially admits that all the talk about protecting copyrights, deterring to-be infringers, etc. is hogwash. All that matters is money to enrich these leeches (and their “clients” who bathe in money). We knew it for a long time, but judges need to be reminded; the slow wheels of justice need to be lubricated.
What this means is that, for all practical purposes, the judge’s signature on the identity subpoena authorization order tends to amount effectively to a delegation of the judicial role to Paul Nicoletti and to Keith Lipscomb. They then arrogate to themselves the judge’s role of deciding how much each case is worth (reportedly, a sophisticated calculation involving the next 20 years’ earnings of any putative defendant, along with all the target’s collectable assets), and elect to decide in an typically overzealous way, what is “fair” to impose as a punishment on a cable subscriber who may or may not have deprived Malibu Media of as much as $25.00 or $50.00 in subscription fees. Are Lipscomb and Nicoletti objective judges of what consequences are fitting for such a horrendous loss (sarcasm intended) to a profitable company like Malibu? Obviously, their behavior suggests otherwise.
“We are saving marriages and making people happy”
Grimm did not forget about Lipscomb’s “client” — X-Art. The second part (Memorandum in Support: the same file, p. 12) questions the notion that hardcore pornography produced by X-Art is a “useful art,” and argumentatively questions the ostensive motives (“to deter to-be-infringers” and “to recover lost revenues”).
Malibu’s revenues are increasing, not declining, Malibu has disclosed. And settlements in copyright lawsuits, according to Malibu, represent substantially less than half of Malibu’s revenue. The X-Art website, says Malibu, is enormously profitable.
[…]
Especially if X-Art (Malibu) is highly profitable, and its profits from its website, not from lawsuits, continue to increase (as Malibu claims), despite being launched in the posttube era, perhaps Ms. Field really is less interested in averting the bankruptcy of X-Art (which, by every indication, does not appear imminent, to say the least), and more interested in funding what her Twitter feed suggests is a rather expensive lifestyle.
In a year-old interview (link NSFW) to Flashbot, XArt/Malibu Media co-owner Colette Field confirmed that they are not concerned with tube sites, which, according to the memorandum above, hurt the producers of pornography by orders of magnitude more than non-commercial Bittorent file-sharing:
Tube sites have brought us some traffic and I am ok with them as long as they remove our videos when we ask (which most of them usually do). I believe people who want real quality will still pay for it, regardless of the tube sites.
In a paroxysm of hypocrisy (or gullibility bordering cretinism), she also claimed (emphasis is mine):
I think X-Art has changed the way that people feel about watching erotica online. I think that we have made it ok for women, men and couples to enjoy beautiful sex scenes, get turned on, get off and have that be OK — I mean it is becoming acceptable in our society. We still have a long way to go, but I like to believe that we are saving marriages and making people happy.
Big thank to you, Colette, and your parasite attorneys, from thousands of families that you have blessed with happiness.
Fight © Trolls 
I like the part of the motion where Grimm insists that it is imperative for him to conduct discovery of Malibu Media’s operations, motives and tech before the court orders the unmasking of his client.
If he’s serious, he better get a counterclaim filed ASAP. These fucking cowards will run as fast as they can if it looks like they’ll have to litigate.
It used to be that making a “film,” rather than just a movie — in pornography/erotica as well as in other genres — entailed telling a story. In the case of X-Art, the exciting story is playing out in the courtroom, rather than in the insipid and frankly, boring X-Art products that have all the “happy” value of a box of McNuggets. Bringing together barely legal actors to simulate emotionless sex is hardly an art form deserving of copyright protections. It doesn’t even advance the state of the art form, let alone knowledge with value to society. As for saving marriages, I doubt that this pablum appeals to anyone in a real marriage, with time being such a scarce commodity and the situations and settings so other-worldly, almost Gatsby-like (with updated trappings). “Save a marriage?” Gimme a break. Collette’s is an ego out of control, one possible reason for these absurd court proceedings to continue.
Wow, Malibu really have filed thousands of cases against Does! This must be what is called in the Hollywood motion picture industry, noblesse oblige: the responsibility of the nobles to bring the legal mace down as hard as possible on the heads of unappreciative peasants, as many as possible, lest the hoi poloi get uppity and share their porn-drugs rather than each buying them anew. Would you believe that over 7,000 people follow Collette, that blonde twit, on Twitter? That would be an interesting audience for these postings, what?
Have a little translation:
>My client has developed a sophisticated analysis for these purposes which not only include a basic current asset search but also looks at the Defendant’s earning power over a 20 year period
“We look at a bunch of people linked to the numbers we pulled out of our ass and sort them out based on demographic stereotypes to see who probably has enough money to rip off.”
>whether the Defendant is sophisticated within the realm of IP
“If the household is stupid enough to have not been following plaintiffs in general, any old judge will do to get a judgment in our favor; otherwise we’ll have to do a little bit of shopping.”
>This isn’t possible
“We’re already holding back by not suing everyone we could have sued, so we’re therefore entitled to this pound of flesh even if it kills this unfortunate sucker.”
>(you’d be surprised how many IP lawyers end up as Defendants themselves)
“We’re coming for you next, you thief-defending scumbag.”
Real classy, Colette.
A well written motion and supporting brief. Even if this court somehow decides to do nothing, this motion is going to be picked up by other attorneys. I bet Malibu Media/X-Art/Lipscomb are now working on potential courses of action to mitigate the facts brought out by Eric Grimm.
I really enjoyed the “Candid Disclosures” list (Pages 3-6). This reminds me a of well played chess match in which a serious attack is in place and the opponent (Malibu Media) can easily back away. The problem is that if they back away (motion to dismiss) after such a well played attack, they all but admit to being a “Copyright Troll,” using the fear uncertainty & doubt (FUD) to further their business model of generating settlements on a repeat basis. Some blood will be spilled in the water and then the sharks will begin to frenzy.
One thing I didn’t see in the motion or support brief is the fact that Malibu Media/X-Art/Lipscomb have been suing over a 1000 people for copyright infringement of the various movies. I believe a certain portion of the infringers are related because they were part of the same swarm (BT SHA-1 Hash file) for the movie or site-rip (multiple movies). The simple fact is that for sharing to occur, it takes at least two IP addresses. The Copyright Act allows for a Plaintiff to recover statutory damages (up to $150K), but the damages are limited – “…for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally…” I know that settlements are different from damage awards, but any damage awards (to include default judgments) from a court should take into account the previous settlement Malibu Media/X-Art/Lipscomb have received for all cases using the same SHA-1 hash file. No Copyright Trolls have ever disclosed the total amount of settlement any one case or SHA-1 file have generated. This is just another aspect of their standard operation procedure of not being upfront or ethical (MY Opinion) with the court.
I also can say it was a great pleasure to be mentioned in the footnote of the motion alongside Fight Copyright Trolls and the Electronic Frontier Foundation (EFF) – bottom of page 7. Yes Collette, You, Your operation, and Keith Lipscomb (and staff/employees) are COPYRIGHT TROLLS – embrace the suck!
DTD 🙂
Here is an IP list from a MM case (1:12-cv-00841-SEB-MJD), IN, where there are 23 Does.
Click to access gov.uscourts.insd.40650.28.1.pdf
The hash file number for the site rip is:
121AC0B46088E7C235A23D4379BE65A1840E9B77 (SHA-1, Title: X-Art Siterip #1)
This case just had a $38K default – Statutory damages. I bet the judge wasn’t told how many other Does had paid settlements for this site-rip/ hash file.
DTD 🙂
Stupid question:
At this point Nicoletti presumably does not have anything other than an IP address, so how does he know the Doe possesses the wherewithal to shoulder a 67K settlement as his email implies?
Not every rhetorical question is stupid.
Beside the most obvious that he is speaking out of his a$$, I can only assume an IP geo-location coupled with some database showing the median income and house prices for a particular location. So lets target the people with some money, but not too rich as they might fight back.
Side-note: Since 11 Jul 13, I have recorded 375 Malibu Media single Doe cases so far (allow for a some error factor – I’m not perfect) – https://docs.google.com/spreadsheet/ccc?key=0ApnZyNTueSnNdE16Mk1QdzgyWTJZTFA4cEZUSzNVd3c&usp=sharing
If it goes on at this rate, over a 1-year time frame, you can expect to see approx. 1500 cases.
Math time: For this exercise I’m going to say each case has 10 claimed movies at a $750 settlement rate. If all 1500 Does settle, the take is $11,250,000.00
75% settlement rate = $8,437,500.00
50% settlement rate = $5,625,000.00
25% settlement rate = $2,812,500.00
Then you have to split it between copyright owner and attorneys. This of course has so many variable, but the fact of the matter is this is a business designed to make money, not deter copyright infringement from a site that charges less that $30 a month for access to all their content.
DTD 🙂
It’s worth remembering how few producers actually engage in these courtroom antics. The porn industry as a whole is suffering no great loss in revenues given that, as the lead character in the new hit film “Don Jon” observes, “Every man watches porn.” And women too. Figure maybe 200 million Americans. Add to that the number of people in the world with Internet service and you’re talking billions, most inhabiting tube sites where copyright is a thing of the past. Peer-to-peer is now such a small slivver of the action, it’s statistically almost insignificant.
Manwin, the giant porn producer based in Luxembourg, prominently promotes its tube properties in the flick, no doubt aware that this will encourage more use of the free tube vignettes — but also, and more importantly, more sales of higher-quality materials, as the film also points out. In other words, peer-to-peer sharing isn’t hurting the industry, it’s the new cheaper way of advertising. (No, Don Jon’s not an in-depth study of porn use or copyright trolls, just the story of a grassroots narcissist who happens to like porn. The Great American Troll Movie remains to be made.)
Malibu doesn’t care a whit for this reality or for the reputation of its industry peers, whom its tactics equally besmirch. It wants its small millions, pennies on the street of the porn bonanza. But if they’re not giving this stuff away, they better be paying sales taxes in the states where buyers exist. Otherwise, that would be tax fraud — and that comes with real criminal penalties.
Another takeaway from this sordid business, for those who cannot resist the urge to share: you might give up on bit-torrent filesharing and stick to tube offerings, which are getting longer and of higher quality, in some cases consisting of whole movies. Yes, the adult tube industry is eating the adult video industry, but as both are owned essentially by the same parties, either directly or through deals, everyone’s boat is floating higher.
This is a fascinating evolution. For every person amateurly DLing a porn item, a dozen others are paying for a higher-quality, less hassly download using the websites’ facilities, and others are ordering whole discs for themselves, also online, for permanent collections. The copyright troll racket might soon go the way of punishing horse thieves, the troll hanging judges slumping away over the historical horizon.
Malibu Media default judgement in IN. $38,645.00 http://www.iniplaw.org/2013/10/copyright-infringement-using-b.html#.Ulf-WYtCfk8.twitter
DTD 🙂
Here is a walk-away dismissal of another defendant in this case. Both side bearing their costs and no settlement was paid. Still cost the Doe to hire an attorney. http://ia600503.us.archive.org/14/items/gov.uscourts.insd.40650/gov.uscourts.insd.40650.184.0.pdf
This is how Malibu Media/X-Art/Lipscomb likes to play. If you try to fight, they will drive up the costs you have to bear in hopes of accepting a “walk-Away” deal.
DTD 🙂
I work as a copyright agent for http://www.copyrighthandler.com/ and work closely with lawyers, and I can tell you that lawyers aren’t in the game for justice. I am afraid that the wheels of justice cannot be fixed with lubrication because they seized a long time ago.
there be lots of power, not as yet unleashed, in the docket of Collins vs Does 1-11 (in INSD):
http://ia701209.us.archive.org/34/items/gov.uscourts.insd.41800/gov.uscourts.insd.41800.docket.html
Nicolletti has been lying in affidavits when serving folks, among other things, and that is only in the recapped part! [QED: Nicoletti is just as immoral as Prenda]
Been keeping my eye on that one. 😉
I just have to say that I love seeing Eric Grimm taking it to Nicoletti here in Michigan. Grimm was one of the attorneys that I consulted with when I got my first whiff of copyright troll trouble, and was the attorney that I would have retained if my own skulking troll had gone beyond nasty phone calls and mean letters in the mail.
The man knows his shit, and was knowledgeable of the ins and outs of this type of legal ‘enterprise’ well before the first days of copyright trolling. His pricing was fair (comparatively speaking as far as lawyering goes), and while you could do a whole lot worse for legal representation, you can’t get much better.
…
And such is my glowing recommendation for Eric Grimm for anybody in the Michigan area who has to put up with any copyright trolls sniffing at their door.
Docket has been updated fad RECCAPPED.
How long before Malibu Media suffers the same fate as Prenda?
4 more in Pennsylvania, and a whole bunch in Colorado, just got into RFC
Just not right, what a abuse of the courts !!!