Guardaley | X-Art
Due to lack of evidence, copyright trolls resort to polygraph tests
Do you remember what happened two years ago, when a judge ordered Prenda to submit a detailed report of its shakedown activities? The report created quite a stir by revealing (or, more precisely, confirming) the fact that Prenda had served exactly zero defendants in 118 mass Doe lawsuits.
This time a similar order was issued to Malibu Media by an Illinois Judge Milton Shadur (remember how he treated John Steele?). According to the docket (Malibu Media LLC v. Doe, ILND 14-cv-00693), the report was supposed to be filed under seal, yet as of today it is available on Pacer. This report provides some previously unknown details of the well-lubricated shakedown machinery operation.
This report was filed today, 4/6/2014, formally by Lipscomb’s Illinois local, Mary Schulz. Yet it is unlikely that she wrote this document: the metadata shows an attorney from Lipscomb’s office, Emilie Kennedy, as the author.
First I’ll skip to the most mind-swirling revelation and address some other issues after that.
Polygraph test: seriously?
On page 4 we read:
Further, Malibu will dismiss its claims against any Defendant who agrees to and passes a polygraph administered by a licensed examiner of the Defendant’s choosing. Out of the entirety of polygraphs administered within the United States by Malibu, no Defendant has passed and all such examinations have subsequently led to the Defendant settling the case.
This is Orwellian. First of all, it is quite an established fact that polygraph tests are pseudoscience. While such tests are still used in some states (Illinois is not among them: test results are not admissible in courts even if both parties agree to enter these results into evidence), scientific community has always been skeptical. There are many papers questioning lie detection methodology accuracy. For example, in 2003 Board on Behavioral, Cognitive, and Sensory Sciences and Education and Committee on National Statistics conducted a substantial research and concluded:
We have reviewed the scientific evidence on the polygraph with the goal of assessing its validity for security uses, especially those involving the screening of substantial numbers of government employees. Overall, the evidence is scanty and scientifically weak. Our conclusions are necessarily based on the far from satisfactory body of evidence on polygraph accuracy, as well as basic knowledge about the physiological responses the polygraph measures. […]
Read the entire Conclusions and Recommendations.
I believe that “offers” to “voluntarily” conduct such tests were, in fact, just another form of pressure, similar to threats to reveal Doe’s porn habits to family, bosses and neighbors. We don’t know if the defendants in question were represented. I’m afraid not, and this is really sickening: we can only guess what kind of lies, threats, half-truths were poured on unprepared laypeople. (Update. Confirmed: only unrepresented Does would take this test — see the featured comment below.)
Good news is that the very fact that the trolls resort to such dubious “evidence” means one and only one thing: regardless of defendants’ guilt, Lipscomb and his gang has zero evidence of wrongdoing in many cases (which was recently confirmed).
Trolls always think that money flows only in one direction — to their pockets. It is usually true initially, but the tide can (and eventually will) change the direction, as we gleefully witness what’s happening with Prenda these days. When it comes to XArt’s illegal conduct, it would be nice to polygraph its models, asking two simple questions:
- Have you been filmed at Colette and Brigham Field’s residence? (No permits.)
- Have you used barrier protection during filmed intercourse? (Ventura county ordinance — up to 6 months in jail per violation.)
For that matter, I also would love to ask Keith Lipscomb while he is connected to the polygraph device:
- Did you commence 1500+ lawsuits nationwide for a proper purpose (to protect copyrights), not to line up your pockets using slow-moving courts as an instrument of coercion?
However, I’m pretty sure that Keith would come out clean: crooks are usually good at defeating lie detection technology. On the other hand, many people become nervous, rendering the test useless: I, for one, would likely fail the test answering the question about my name and age.
The numbers
Another interesting part of the report is the numbers.
In totality, Malibu has filed 268 cases within the Northern District of Illinois. Of these 268 cases, 25 cases were with joined defendants and 243 cases were actions filed against a single Defendant, like the current case at hand. The 268 cases filed by Malibu had a total of 886 Defendants between them. Of these 886 defendants, 643 were within joined suits and 243 defendants were from cases against only a single defendant.
So what are the shakedown proceeds?
Of the 886 defendants in cases filed by Plaintiff in the Northern District of Illinois, 174 defendants have settled the case against them.
110 Does settled during the joinder era, when the amount was $2,000–$4,000, and 64 — from individual cases, where the ransom was much higher — $7,000–$10,000, which results roughly in 1 million dollars in Illinois alone. Illinois’ share in the total number of lawsuits filed by Malibu nationwide is about 1/6, so it is reasonable to assume that the extortion machine brought about 6 million dollars to Lipscomb, IPP and XArt. Later in the report we read:
More importantly, Malibu’s main source of revenue is from the subscribers of its website, not from lawsuits.
This is disingenuous to say the least. Either it is a cynical lie, or Lipscomb pays “plaintiff” only a small amount of the proceeds. The latter possibility was suggested by Adam Curry, a well-known radio show host from Texas.
Reasons to dismiss
Trolls claim that about half of the cases dismissed without settlement were either because of “hardship” or “insufficient evidence.” Here is how trolls define “hardship”:
Hardship is when a defendant may be liable for the conduct, but has extenuating circumstances where Plaintiff does not wish to proceed against him or her. Examples are when a defendant has little or no assets, defendant has serious illness or has recently deceased, defendant is currently active duty US military, defendant is a charitable organization or school, etc.
So, correct me if I’m wrong: “hardship” is a preexisting condition. I.e. if a defendant becomes bankrupt and/or ill as a result of harassment or insane settlement/judgment, it does not qualify, right? In addition, there are many examples when Lipscomb & Co continues to twist arms of the weak (like an 80-year old woman).
As for the insufficient evidence as a basis for dismissal, just read this post…
Not a troll
On page 14 trolls claim that they are not trolls. What can I say? In my opinion, the duck test is way more reliable than polygraph.
Exhibit A | Exhibit B | Exhibit C | Exhibit D | Exhibit E | Exhibit F | Exhibit G | Exhibit H
To conclude on a lighter note, here is the only justified use of a lie detector — in a comedy:
Coverage
- X-Biz: X-Art.com Offers Polygraph Tests in Porn Piracy Cases by Phett Pardon.
- TorrentFreak: Document reveals when copyright trolls drop piracy cases by Andy.
- ArsTechnica: Porn site that spews copyright suits uses lie detectors on defendants by Joe Mullin.
- Slyck: Copyright Porn Trollers Malibu Media Resort to Polygraph Tests to Settle Cases by Amanda Marie.
- Dziennik Internautów: Wykrywacze kłamstw do walki z piractwem – pomysły antypirackich trolli by Marcin Maj.
- Vice (Austria): US-Pornoproduzent Setzt Lügendetektor In Copyright-Klagen Ein by Max Hoppenstedt.
Featured comments
Current doe in a Malibu Media case. I am innocent and fighting back tooth and nail. I was offered a polygraph to avoid litigation, just like this. I was actually very tempted to take it because I felt strongly that I had nothing to hide and that I would pass. However my lawyer told me in no uncertain terms that if I went ahead with it, there would be no choice but to withdraw as my council and that advising me to do it would amount to legal malpractice.
After reading that nobody in the entirety of MM’s polygraph cases has ever passed, it’s looking like my lawyer’s advice was rock solid.
Also, saying that the polygraph examiner is of the defendant’s choosing is garbage. The polygraph I was offered was an ‘independent’ registered polygrapher selected by the Plaintiff.
I’m almost certain I will be served due to my refusal to take the polygraph, because no other recourse against litigation was ever offered. “High standards prior to serving a defendant” indeed.
[…] ProTip: IF THE PERSON SUING YOU OFFERS YOU A WAY TO PROVE YOU’RE INNOCENT, IT IS A TRAP!
Update
2/14/2015
A must read article on the topic in The Daily Beast: The Polygraph Has Been Lying for 80 Years (2/4/2015).
Fight © Trolls 
What an incredible bunch of malarkey, They can discern who pirated porn by likes on Facebook profile and ones occupation? Right and don’t forget by using a Ouija board. Settlement is not an admission of guilt rather that it is cheaper than litigating. If they truly had good evidence and wanted to put an end to piracy, then they might try winning a few multimillion dollar cases. That would make the national news and frighten everyone.
There is nothing artistic or high end about making a few minute video of a naked teenagers. The lack of growing subscriber’s to X-Art might be that their stuff is down right aberrant. This may be in part why they settle and may never go in front of a jury.
Current doe in a Malibu Media case. I am innocent and fighting back tooth and nail. I was offered a polygraph to avoid litigation, just like this. I was actually very tempted to take it because I felt strongly that I had nothing to hide and that I would pass. However my lawyer told me in no uncertain terms that if I went ahead with it, there would be no choice but to withdraw as my council and that advising me to do it would amount to legal malpractice.
After reading that nobody in the entirety of MM’s polygraph cases has ever passed, it’s looking like my lawyer’s advice was rock solid.
Also, saying that the polygraph examiner is of the defendant’s choosing is garbage. The polygraph I was offered was an ‘independent’ registered polygrapher selected by the Plaintiff.
I’m almost certain I will be served due to my refusal to take the polygraph, because no other recourse against litigation was ever offered. “High standards prior to serving a defendant” indeed.
Your lawyer was rock solid in his advice, stick with him or her and best of luck.
You probably ought to tell your lawyer about the ‘no MM’s polygraph case has ever passed’ thing, and thank them for their advice the next time you talk with them. Your lawyer may not have seen that detail and it may prove useful to them in the future for dissuading others from attempting a polygraph test. And thanking them and telling them they were right will make them feel listened to and appreciated, and may also be useful in dissuading others.
“The entirety of polygraphs administered within the United States by Malibu … nobody passed” sounds, to me, like lawyerspeak for “we’ve only administered one of them so let’s talk about batting average instead of at bats.”
Or did they do even that? Malibu stated in literally the preceding sentence that polygraphs are not administered by Malibu but instead by a third party.
It sounds more like lawyerspeak for “We never had a defendant take a polygraph test, so we never dismissed a case because the defendant passed.”
I doubt they ever even administered a polygraph considering the cost of a professionally administered polygraph test is typically between $500 and $800 and that would eat up all of the settlement. No way they ever paid for a polygraph.
If they expect a doe to pay for a polygraph, that is just retarded because them passing a polygraph or having “inconclusive” results in no way guarantees the suit is dismissed. Why would anyone pay that kind of cash for a polygraph when a response doesn’t cost anything but a few hours of your time?
That’s rub. Neighbors will volunteer, and the chump gets to pay for it! Pressure to settle much?
Malibu Media offered to pay for my polygraph, ‘as a courtesy.’
I guess $500 to $800 is an affordable enough of a scam investment when you’re trying to milk someone for $10-20k.
Is this all we have to look forward too? What’s next, streamers of tube sites paraded during superbowl halftime after a world televised and translated pre-game march of shame?
Gee, its not like the Feds went crazy and went after the guy teaching people how to beat the polygraph…. er wait….
https://www.techdirt.com/articles/20130820/00514824248/federal-official-declares-that-anyone-who-speaks-out-against-lie-detector-tests-should-be-criminally-investigated.shtml
http://www.techdirt.com/articles/20130908/00044524444/eight-months-jail-teaching-people-how-to-pass-lie-detector-test.shtml
Yep it TOTALLY is legit. (For the impaired, this is sarcasm.)
This is another ‘magical device’ that will prove the unproveable, just like their secret black box that can identify infringers from seeing an IP address.
This is another trap, if you are innocent this ‘test’ will back you up and you can walk away… except it won’t work that way. Given the history of this troll operation having issues with the truth, would you trust anyone they picked, would you trust them to read you the report? Would you like to buy a bridge in Brooklyn.
ProTip: IF THE PERSON SUING YOU OFFERS YOU A WAY TO PROVE YOU’RE INNOCENT, IT IS A TRAP!
I wonder if Feds want to extradite and prosecute Cory Doctorow, who “teaches” how to beat polygraph in his novel “Homeland” (p. 132).
80% of cases were dismissed. The only cases going to trial were default judgements or forced by Judge and these were also settled before bench trial which turned into a one sided dog and pony show in front of Judge Baylson. It is unlikely many submit to the lie detector trap. Do you have a penis? Yes. You’re guilty!
If I was falsely accused, I’d pickup a used wireless router on Ebay or local used computer store and say it was open (without password). It raises too many doubts that Plaintiff is unwilling to pursue.
It appears those not willing to write a check real fast, are dismissed.
The polygraph exam is nothing but a tool for Troll Lipscomb/X-Art to further develop evidence against a defendant or at least break down a defendant and get them to agree on a settlement. It is not worth it to take one regardless of innocence.
The finer details of how they use social media to attempt to determine who is responsible for the non-X-Art media being shared via BT is interesting. It is in NO way a “smoking gun.” BUT they do try to tell the court that if something in “Exhibit C” (Non-X-Art media) is ‘liked’ by defendant, they are vindicated and it shows they are doing real investigations.
Much more to digest on this. DTD 🙂
One of the most interesting quotes in the submission was when they said one reason for not pursing a claim was :
” the ISP could not associate the IP with a subscriber at the stipulated hit date and time.”
If their methodology is accurate, shouldn’t there be a 100% correspondence between the IP address and a subscriber? If they claim that they have “proof” that a Comcast subscriber at IP address A was downloading their porn on a particular day and time, and Comcast says their records indicate that no subscriber had address A and was downloading at that day and time, isn’t that proof that their detection methodology fails? Shouldn’t the fact that they have evidence that their methodology is producing false positives be a required disclosure?
I like the way you think, but I’m sure that MM’s answer would be that the ISP had record keeping problems/they had already flushed their data/etc. rather than their technology being bad.
In the submission, flushing the data was a separate line item. An answer that the ISP’s records are unreliable, would play havoc on claims where the trustworthiness of the ISP data is the primary evidence of guilt. Either Malibu’s methods of identifying the IP are untrustworthy, or the identification of the defendant by the ISP is unreliable, for naming the defendant. They might argue otherwise, but it still provides an additional argument for the defense that would be very difficult to refute. I doubt the ISP would respond in a deposition that their records are inaccurate and causing innocent people to be falsely accused. They would most likely vigorously defend the accuracy of their records. In a case of believing an uninvolved third party or the pornographer, who has more credibility?
I’ve taken several polygraph interviews.
From my experience, it would take a sociopath to “pass” without practice. The inexperienced innocent is very likely to exhibit extreme nervousness that will be used as evidence of ‘guilt’.
The only use is to cause people to modify the kind of deceptions people will try, making it easier to verify or disprove their statements. Or, perhaps, to check a few specific details of after an extensive background investigation, but only as part of a much large set of questions where the answer is already known. But the same results could probably be done as part of a interview that takes just as long (hours, not a few minutes).
There’s the real rub. Never once in MM’s polygraph offer to me did they disclose what a ‘pass’ even was. They simply said that if THEY determined that I was being truthful, they would drop the case.
It seems stupid that I was even considering taking Malibu Media’s polygraph before. As commented above, why would you ever trust someone who’s trying to sue you for everything you’re worth?
Exactly! These are not good and clean players that they pretend to the Judge and the courts. They are going for everything you own on the sketchiest of evidence. In some instances multi-family generational savings for what is truly worthless video clips. That very few would even pay a quarter to see at a local peepshow porn shop.
You can be frightened into cutting them a check with them expending little time or effort, or you can win, paying them nothing by making if very difficult, time consuming, and expensive to get any more supporting evidence. When you cut through their legalese, they have nothing besides a big fishing net from some hacks in Germany.
One of the defendants in the PA Eastern District Federal Court was active duty soldier being deployed to Afghanistan. The plaintiff did not dismiss the lawsuit against him. So reality is far different from the fairytale this lawyer wrote.
Well I’m a bit relieved that Malibu Media / X-Art and their lawyer Lipscomb haven’t started waterboarding defendants.
Wouldn’t it be wonderful if the Judge said, since you believe in lie detector testing, I’d like to ask you Lipscomb and Colette Fields some questions while you’re hooked up to the machine, just so we all know the truth.
How about someone fax the Judge Lipscomb’s email(s) saying he will destroy the defendant unless he/she settles. Notice there is not a single defendant out of millions that state they were treated fairly.
Given the years of lawsuits and their super detectives one has to ask why they haven’t inserted a watermark tracer in their work so they can catch the one who is stealing the videos directly from their website. That wouldn’t be good for business, I guess.
In answer to my motion to sever joined Does, Lipscomb argued that wireless router were over 99% secure and do not prevent discovering who stole the goods. Just outright bull sh*tting the Judge with technologic jargon. That was nearly two years ago. At that time. it was well known that the most popular CISCO wireless router’s password could be cracked in about 3 minutes. Now he at least admits these devices may not be secure.
The more they reveal, the more it appears they have nothing to go to trial with. In my case not a single Doe was served, all were dismissed with no settlement.
Three minutes to crack a Cisco router? That is only if you are dealing with amateurs; pros can do it in seconds. I have a piece of software (freely available on the Internet) that shows the signal strength, direction and channel numbers in use by nearby routers. This is handy for configuration as it helps avoid channel collisions.
However, it also tells me the brand and model number of any router within receiving range. The default factory passwords for that model are then just a Google search away. You have no idea how many people fail to change the password to something more secure.
Sure, if they use default passwords it can take seconds. But if they are using something like WPA2 or WPS-PSK and a good admin password, it doesn’t take seconds for the “pros”, it typically takes about 3-4 hours using a single wifi interface – if at all. Here is how it is done for those that have WPS enabled:
“wash -i mon0” to get the target’s network address and see if they are WPS enabled then
“reaver -i mon0 -b [BSSID – MAC Addr] -v” to get their WPS Pin and Password or PSK.
Done and Done – even on modern routers. Most routers still have WPS enabled for ease of setting up in-factory (or by your ISP) and are easily cracked. Even several hundred dollar corporate wifi hotspots still have WPS enabled.
A simple shell script can be written to automatically look up all wifi hotspots in an area that are WPS enabled and then automatically go to work cracking them in order of their signal strength and then connect to the first one broken into. Just leave your device on and walk away for a few hours – when you come back you have stolen internet.
Which is why I tell EVERYONE to first disable WPS, then disable SSID broadcast, then set up MAC filtering with a whitelist. I installed DD-WRT on an old Linksys and turned it into a wireless bridge for my old Blu-ray player, then while I was screwing with the settings (remotely) I accidentally blacklisted everything heh. Never got around to hard wiring it and removing the MAC filter.
Source: http://www.psychologytoday.com/blog/the-human-beast/201303/do-lie-detectors-work
“Interestingly, the polygraph is quite good at identifying liars but does no better than chance at detecting honest people according to Lykken. In other words, there is a 50:50 chance that a polygraph test will say an honest person is lying (a 50 percent “false positive” rate).”
So if you’re innocent, you might as well flip a coin: heads you’re innocent, tails your guilty.
With that kind of false positive hit rate, it’s no surprise everyone who has taken it has been “found guilty”.