Florida Judge dismisses a Malibu case because Lipscomb failed to establish a connection between an IP address and person
Even if this IPaddress is located within a residence, the geolocation software cannot identify who has access to that residence’s computer and who would actually be using it to infringe Plaintiff’s copyright.|
|From Judge Ungaro’s Order|
We saw it coming: in less than two months in the Southern District of Florida, a venue where copyright troll Keith Lipscomb’s command and control is located,
- Judge Federico Moreno ruled that there is no “good cause” to deviate from Rule 26(d), thus denying early discovery in Malibu Media v. John Doe, 14-cv-20216;
- Magistrate Frank Lynch also denied Lipscomb’s motion for ex-parte discovery citing untimely copyright registrations in Malibu Media v. John Doe, 13-cv-14458;
- Magistrate Andrea Simonton recommended to sanction Lipscomb in Malibu Media v. Pelizzo, 12-cv-22768;
- Judge Ursula Ungaro denied Lipscomb’s routine motion for extension of time to serve the defendant and closed Malibu Media v. John Doe, 13-cv-23714.
In the latter case, on 10/29/2013 the judge sua sponte ordered to show cause why the Court may reasonably rely upon the Malibu’s usage of geolocation to establish the identity of the defendant (and also establish that the defendant may be found within this district).
Lipscomb responded on 11/12/2013, and apparently satisfied Magistrate Torres, to whom Judge Ungaro referred the case. As already mentioned, the case was closed not because of the OSC outcome, but for failure to serve the defendant.
Fast forward to March 2014. On 3/5/2014 in Malibu Media v Doe (FLSD 14-cv-20213), an identical order to show cause was issued by Judge Ursula Ungaro. Lipscomb responded, but this time he was not so lucky: the judge was not satisfied with Lipscomb’s explanations and on 3/20/2014 ordered that
[…] Even if this IP address is located within a residence, the geolocation software cannot identify who has access to that residence’s computer and who would actually be using it to infringe Plaintiff’s copyright. The Court finds that Plaintiff has not established good cause for the Court to reasonably rely on Plaintiff’s usage of geolocation to establish the identity of the Defendant. The Court also finds that Plaintiff has not established good cause as to why this action should not be dismissed for improper venue.
The case was closed:
This is not all: on 3/20 Judge Ungaro issued identical orders to show cause in two other Malibu/Lipscomb’s cases assigned to her, 14-cv-60681 and 14-cv-60682 (filed just two days before, on 3/18/2014). Well, the outcome is predictable.
Judges rule according to the law, no doubt. Yet the law is not math, there is always a window in which a case can be ruled one way or the other, especially in civil cases. By default, a lawyer, the “officer of the court,” is a trusted party, and a judge often makes decisions taking such lawyer at his word.
But if a lawyer clogs understaffed courts with lawsuits that have nothing to do with advancing justice but rather with stuffing his pockets, sooner or later the pendulum moves in the opposite direction. Losing reputation is a one-way street, and I feel that it is what we are currently witnessing in FLSD. Judges are sick and tired of Lipscomb, and if two years ago he could forge a signature and get away with it, today his extortionate activity in his own backyard is about to end.
No doubt other states/districts will follow this trend, and I pray that it happens soon.
- TorrentFreak: Judge: IP-address is not a person and can’t identify a BitTorrent pirate by Ernesto.
- ArsTechnica: Judge to porn trolls: IP addresses aren’t people by Joe Mullin.
- Calvin Li: Thoughts on the Ungaro order.
- RT: IP address does not constitute a person, judge rules in copyright suit.
- XBiz: Judge Wary of Geolocation Technology in Porn Piracy Case by Rhett Pardon.
- BoingBoing: Judge tells porno copyright troll that an IP address does not identify a person by Cory Doctorow.
- Slyck: Malibu Media BitTorrent Case: Judge Says No, an IP Address is Not a Person by Amanda Marie.
- PuntoInformatico: Copyright, il colpevole non può essere un numero by Gaia Bottà.
- Consumer Eagle: Courts Protect Consumers in IP Address Cases by Annamarya Scaccia
On 4/4/2014, following this groundbreaking order, Judge Federico Moreno, who, citing Judge Wright, recently denied Lipscomb’s request for ex parte discovery, sua sponte issued an Order to Show Cause “why the Court should rely on geolocation services to establish the Defendant’s identity and location in this district, as well as why the Southern District of Florida is an appropriate venue for this case.”
THE COURT has recently been made aware of an Order by Judge Ungaro in an identical case, Malibu Media v. John Doe, 14-cv-20213-UNGARO, finding that Plaintiff has failed to show that (1) the Court could rely on geolocation services to find establish the identity of the Defendant, (2) the Defendant’s location in this district, and (3) that the Southern District of Florida was a proper venue.
Response is due on April 14th.
Instead of responding to Judge Moreno’s OSC, Lipscomb ran away like a petty thief — dismissed the case without prejudice today.
24 responses to ‘Florida Judge dismisses a Malibu case because Lipscomb failed to establish a connection between an IP address and person’
Nice post about a nice determination. My favorite 2 lines:
“Even if this IP address is located within a residence, the geolocation software cannot identify who has access to that residence’s computer and who would actually be using it to infringe Plaintiff’s copyright. The Court finds that Plaintiff has not established good cause for the Court to reasonably rely on Plaintiff’s usage of geolocation to establish the identity of the Defendant.”
Kinda like Malibu Media got the Elf-Man treatment.
After two years of the tsunami of lawsuits without any going to trial, the judges should put an end to their being pawns in a shakedown of the American people.
I have to wonder if Lipscomb will continue to file cases in this district considering the fact this Judge has now rules more than once that the fishing expedition was over in her court.
We all know that Lipscomb could still file cases in this district and hope they land in front of a different Judge, but one would have to believe that other Judges in this same district would be advised of Judge Unagro’s ruling in other Malibu cases which would obviously crimp Lipsomb’s extortion -er- copyright litigation strategy.
The good part of Judge Ungaro’s ruling is that this may haunt Lipscomb in other Federal courts where he has cases filed, surely some of the defendants and their counsel will be kindly mentioning these rulings to the court which could spell trouble for Lipscomb.
I have to wonder in view of this if Lipscomb may try and go the Prenda route if he starts getting ruled against in federal court and try to move cases to state court and cross his fingers that no one pays much attention to it.
Prenda as you will recall had a good run in state courts before it all unraveled with AF Holdings and Lutz and the various counsel’d of defendants bringing to the courts some of the shadiness surrounding the litigation that Steele, Hansmeier, Duffy and Gibbs were bringing forward.
It will be interesting to watch and see how Lipsomb moves forward with these rulings coming forward and questions starting to come forward about the German IP monitoring firm being brought to the courts attention.
While Lipscomb’s bravado and ego may have soared since the bellweather success in his belief in his litigation machine, the tides could be starting to turn and it could be just a matter of when the wave hits the beach.
What is also interesting is this notorious copyright troll is now entering the field of patent trolling. Lipscomb and his minions have filed, to date, 26 lawsuits on behalf of a mysterious plaintiff, Hawk Technology Systems, LLC. http://www.rfcexpress.com/search.asp?page=2&partyName=Hawk%20technology%20systems&caseTypes=%27P%27,%20%27C%27,%20%27T%27tec. Essentially the lawsuits are claiming that the biggest clients of Genetec, Inc. are infringing on Hawk’s ‘462 patent for video surveillance and conferencing. Genetec has filed a declaratory judgement action asking that it be determined that all these lawsuits are nothing but a shakedown scheme. http://www.archive.org/download/gov.uscourts.flsd.431923/gov.uscourts.flsd.431923.1.0.pdf. Hawk has a website that is “under construction” but which lists Lipscomb’s office and a roofing company in Texas as its business addresses according to a cursory Google search. http://www.hawktechnologysystems.com/contact-us/. Interesting shit, eh?
Don’t even get me on the topic of the incorporation of Hawk Technology Systems, LLC.
Sorry, forgot that Hawk Technology Systems, LLC holds in its mysterious corporate shell an ASSIGNMENT of a very vague patent. Remind you of another shell corp.?
Reminds me of a AF Holdings, but the copyright assignment sure brings back memories of Righthaven to my mind which also was the cause of Righthaven’s demise. I have to wonder if Lipscomb see’s the writing on the wall with porn copyright cases and is going for a new tact in using patents to start scaring victims -er- infringers of said patent to cough up.
The problem with the patent suits is that for as many that settle there are just as many that fight because they know some of the nonsense that is going on.The fact that some patents are starting to be declared invalid due to certain issues also come into play. It will be interesting to see what this so called patent is and does and how it supposedly infringes.
I see Lipscomb may be taking a page from some of the IP Patent trolls that are currently working the system as we speak. This is quite the leap for Lipscomb so it will be interesting to see how he fares with his new path to easy money that he may believe he will make.
That being said there have been a lot of Patent trolls who took quite the beating in court and were on the hook for costs and had their patent declared invalid.The other thing about patent trolling is it can take a lot of cash and time to move a patent suit forward, Lipscomb porn strategy has been to avoid that as much as possible to keep profits high and costs low, with patent suits he may end up spending way more than he will bring in.
This may be fun to watch as this litigation moves forward
Incredible news! Hopefully this is the beginning point for the demise of Malibu and it’s scum lawyers. Wish it would happen in Pennsylvania with the judges wising up.
Thanks for reporting it!
HA HA! What a short and sweet order to read. I think troll Lipscomb’s next responses will be interesting to see – cases 14-cv-60681 and 14-cv-60682. If they do make any response. They can either try to answer the OSC or simply stop filing in the SDFL. Either way Lipscomb knows that it is going to be an uphill battle. Filing any more weak-ass responses will just add fuel to the fire for future efforts to get these cases dismissed in other jurisdictions.
There is no way the public IP address can do anything but come back to the ISP subscriber. To simply name a defendant based on this is reckless IMO. Even if an ISP subscriber does not voluntarily respond to Troll/Plaintiff that in NO way increases the likelihood that he/she is the infringer. The only thing Malibu Media does that could be construed as an additional step to identify the infringer is the “Exhibit C” files (Non-Malibu Media files) being shared via BT over the public IP address. Even then, it is just an indicator that requires additional investigative work.
What is the additional work? Depositions and forensics. BUT Troll Lipscomb doesn’t want to spend his money on such things. Much simpler to threaten and drive up legal bills to get people to cave in. Lipscomb knows that if depositions and forensics don’t come back with good evidence, Judge Ungaro is right.
“Even if this IP address is located within a residence, the geolocation software cannot identify who has access to that residence’s computer and who would actually be using it to infringe Plaintiff’s copyright.”
” . . . I have to wonder in view of this if Lipscomb may try and go the Prenda route if he starts getting ruled against in federal court and try to move cases to state court and cross his fingers that no one pays much attention to it . . .”
State court cases work of course, but only so far. The biggest problem is that the troll will almost certainly wind up with diversity of citizenship and, if the greedy little troll is asking for statutory damages, then the combination of diversity and a controversy or claim worth in excess of $75K gives the defendant grounds to remove the case to federal court. Of course there are ways to destroy diversity, but Prenda did not like the result when they tried to add Alpha to the Illinois cases.
AVN ended their reporting on the news with a snark (emphasis is mine):
Adult industry implicit support of copyright trolls is childish. I understand frustration over piracy, but trolls don’t solve the problem, only plunder the population. Supporting trolls is like rooting for a bank robber in a town where you once have been mugged.
Well, of course, AVN would put a spin on it. I’d expect them to. I wish more people knew of this stuff. This story makes TorrentFreak and the snarky commentors there have no clue this has been going on and to what extent and how it’s all being done as well. If this site and DTD didn’t exist, we’d be in a dark place.
Reblogged this on TorrentLawyer™ – Exposing Copyright Trolls and Their Lawsuits and commented:
Well written article, and good references. I have nothing to add because the article speaks for itself. The comments are just as interesting, especially mentioning Lipscomb’s Hawk Technology Systems, LLC *patent* infringement case. Yes, patent infringement (right down my alley).
Thanks, Rob. Many thanks to Raul, who keeps an eye on Malibu dockets and picks up the Pacer bill…
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