Guardaley | X-Art

Defendant makes a powerful move against copyright troll Malibu Media in Maryland

On 3/28/2014 defense attorney Morgan Pietz (with local counsel in Maryland John C. Lowe) filed a bunker buster of a motion in three Maryland individual cases, all titled Malibu Media, LLC v John Doe (MDD 14-cv-0223, 14-cv-0257 and 14-cv-0263).

This motion is, in part, a continuation of the work by Jonathan Phillips, who discovered and called out unethical (to say the least) contingency fee agreement between Malibu’s nationwide counsel, M. Keith Lipscomb, and a key witness, a German “IP harvester” IPP International.

The title of the motion is rather long: ISP subscriber’s motion for an order to show cause as to why all evidence and data from Tobias Fieser and his company IPP should not be precluded and these cases dismissed.

Tobias Fieser’s declaration is basically the only “evidence,” upon which the entire trolling house of cards is built (no wonder the trolls sabotage any discovery so aggressively), and if Lipscomb and his clique did not lie through their teeth when asking for ex parte discovery, courts would most likely think twice before allowing it:

Common sense and the slew of cases cited in Section III(a)(2), above, all suggest that the Court might have excluded or, at the very least, looked more skeptically at the Fieser declaration if the Court knew it was coming from a contingent fee witness. Thus, disclosing Fieser and IPP’s contingent interest in the litigation as an adverse fact as part of the ex parte early discovery requests would be required under Rule 3.3(d).

I like that throughout the motion Pietz compares Lipscomb’s shakedown cartel to infamous Prenda Law:

In the Prenda case, when confronted with probing questions about mysterious offshore shell companies fronting the nationwide settlement mill, rather than provide answers to these questions, the Prenda lawyers attempted to “cut [their] losses and run out of court, using Rule 41 as an emergency exit.” It appears that the same thing has now occurred in the Malibu cases in this district. Malibu has unilaterally dismissed a case pending before Judge Motz, rather than address troubling concerns about the fact that Malibu (or its lawyers) apparently pays the key witness in these cases pursuant to an “oral contingency agreement.”

I know for a fact that this comparison immensely pisses off Lipscomb, and for a reason: if one hears nothing but lie, all such allegation can cause is a mere shrug, but a truthful, precise analogy usually hits the nerve. I commend Morgan for calling the things as they are: Lipscomb and Prenda are fruits of the same poisonous tree.

As you noted, Pietz accuses Lipscomb and his local counsel Jon Hoppe of blatant forum shopping. Indeed, even a colette would understand why the trolls, being confronted on the contingency fee issue, hastily dismissed the case assigned to Judge J. Frederick Motz, a judge who undoubtedly thinks that contingency fee agreement with a key witness is not kosher:

As Judge Motz once noted of the problem posed by deals to pay witnesses a contingent fee, “[f]inancial arrangements that provide incentives for the falsification and exaggeration of testimony threaten the very integrity of the judicial process which depends upon the truthfulness of witnesses.”

The unethical agreement is not the only issue here: IPP/Guardaley relationship is being questioned, purported reliability of Guardaley’s methods is called out, a relative unimportance of the “plaintiff” XArt in the conspiracy is finally addressed, and some other relevant questions are raised. You really need to read the entire motion. It’s 58 pages long, but it is worth your time. It is a very tough task to annotate this work, and I had no choice but to omit some really important points.

So what does this motion ask for?

  • As to the preliminary matters,
    • to allow the Doe to formally intervene, thus avoiding trolls’ hallmark argument that putative defendants have no standing;
    • to consolidate the cases, obviously;
    • to stay subpoena until this motion is ruled upon.
  • As to the merits, Malibu should be ordered to show cause on three factual issues and a resulting legal one, as follows:
    • confirm whether IPP and Fieser were engaged as contingent fee witnesses and detail the nature and extent of the relationship;
    • given the substantial documentary evidence suggesting otherwise, explain the statement made on the record to Judges Titus and Grimm denying that IPP is a front for Guardaley, and the apparent attempts to disguise Guardaley’s behind-the-scenes role in these cases;
    • explain the conflicting statements about whether it was IPP or Excipio software used to collect the data this case is based on; and
    • assuming that IPP and Fieser do or did have a contingent interest in the outcome of this litigation and that IPP is really a front for Guardaley, and that Malibu has been less than forthright about all this, address what effect such champertous arrangements and lack of candor should have on this and other similarly situated cases, in view of Movant’s arguments in the Motion For An OSC that preclusion and dismissal should result.

 

Declaration of Morgan Pietz’s, referred in the above document, is here, and here are 270(!) pages of exhibits:

 

On 4/10/2014 Hoppe moved for extension of time, which was granted. Today, 4/14/2014, Morgan Pietz responded to that motion (Exhibits A and B). Pay attention to Exhibit A (Hoppe’s email to Verizon’s legal compliance department): you will like it:

Dear Ms. Barron:

That is flatly outrageous! Your attorneys are not empowered to functionally rule on Mr. Pietz’s request for a stay prior to the Court ruling on the same. I expect full compliance with all of our subpoenas unless and until the Court orders a stay of the same. I would hate to see the goodwill we have enjoyed breakdown over this issue. Please put me in touch with your counsel immediately!

– Jon A. Hoppe, Esquire

Sent via BlackBerry from T-Mobile

This clown signs his misguided rants as “Esquire,” is if he were a real attorney.

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Discussion

24 responses to ‘Defendant makes a powerful move against copyright troll Malibu Media in Maryland

  1. Well after spending a great deal of time reading Pietz’s motion and reading the exhibits he submitted there are some fascinating thing’s that caught my eye. With respect to Patrick Paige being brought in.

    It would seem in my opinion that Paige was brought in more for credential clout to further the findings using the Excipio software in this case. This strikes me as more of a move to save their litigation in this case and any other pending Malibu cases where the issues regarding the proprietary software if you will that Pietz has raised in this case and was brought forth in the Colorado case as well.

    Lipscomb and the gang have stated previously in their court filings that they would have no issue with Tobias Fieser coming to court to testify if called upon to support the facts he has supplied about the IPP software and how it works and how he was the person in charge that was in care and custody of the information and verified it’s authenticity to it’s operation and results.

    Now if you recall Lipscomb has stated that Feiser is the ONLY one who could testify to it’s reults and authenticy. Hmmm now why would he be the only one? Surely one would have to believe that the authors who developed and coded the software could verify how it performs the process it underatkes and how it achieves it results, after all they would have tested it to make sure of the accuracy of it before it was put in service.

    So why wouldn’t Ben Perinho who it would seem invented this software be able to testify and support that the software does what it was designed to do? It seems a tad troubling that Feiser is the only person who could verify and testify about the result of this software used in the IPP monitoring even though he didn’t create it and just uses it in his job allegedly.

    Lipscomb has gone to great lengths in Fesier’s declaration to the court to mention that Feiser would come to court and testify to the results of the software and his findings if subpoenaed to do so….But apparently not anytime soon.

    So now it is a different firm called Excipio software and monitoring for illegal downloads and in Paige’s spare time when not working for law enforcement Paige put’s on his crime fighting gear to track down people downloading porn from Malibu and XArt, Must be just as enthralling for him and look great on the credential sheet.

    With this revelation that IPP was no longer being used and now it is Excipio how does Lipscomb and Malibu present this to the court considering that in 14-cv-0223, 14-cv-0257 and 14-cv-0263 IPP and Feiser declarations are used to get the court to consider granting the request for the Subscriber information in relation to the IP addresses that were monitored by IPP downloading the infringing works of XArt.

    How does Lipscomb explain this now little blip to the court that it wasn’t IPP software, servers and technician’s that was used it was Excipio’s software, servers and a contractor.

    I also found the revelation that Canadian copyright troll Canpire/Barry Logan specified in their affidavit to the court in Ontario, Canada that they used Guardaley Observer v1.2 to monitor the downloading of Voltage Pictures films being shared on Bit torrent clients by infringers.

    So Canpire/Barry Logan were using a verison of Guardaley Observer v1.2 to monitor for infringing works between Sept 1 3012 and Oct 31 2012 and the action was filed in Ontario court on May 27 2013…Then Barry comes back and say’s whoops I meant Guardaley Observer v1.47. Gee Barry didn’t the German court find their software was faulty and not reliable, but yet YOU used it to monitor downloading of your clients films??? That ought to go well for you when some defense counsel brings that little gem up.

    Now in some of the Malibu cases were we have seen documents here and elsewhere all of Tobias’s declarations say that he used v1.2 of IPP’s software. Guardaley’s website is still alive and well. Now why don’t we see any information on the IPP firm and it’s software IPP International Tracker??

    One would find it most strange that a firm that does international business with the Protection of Copyrighted works would have some information for it’s clients and any potential clients to get a hold of IPP to discuss the services they offer or inquire about their services…but apparently not.

    They have no presence on the net, no real presence or address I can find in Germany, nor any phone listing ( but fear not future clients, super sleuth and copyright crime fighter Keith Lipscomb can give you the number that only he seems to know ) ( Getting the phone number for super secret firm IPP will require the secret handshake and a picture of you and Big Foot holding up a newspaper with today’s date on it )

    Now Lipscomb states that IPP is not Guardaley or any version of it. But Ben Perino is the one who invented the Guardaley Observer software, so obviously he was employed there along with Patrick Achache. Now Ben Perino was listed as a Director, CEO and even a stint as managing director at Guardaley and Ben was also listed as a manager a United States Copyright Group ( who didn’t see that one coming! )

    Patrick Achache was apparently the Director of Data Services at Guardaley. Now why would they claim that Patrick stole the Software from Guardaley as they are alleging? If you look at the what the proprietary software is it seems like it is based on the shareaza bit torrent program. ( based on or is..)
    with what it would seem are already out there software like Wireshark and PCAP etc etc. thrown in the mix and called it their own

    I wonder what the good folks at shareaza think about a copyright protection firm violating the terms of their user agreement for shareaza bit torrent client and then using their coded work and modifying it for a commercial purpose ( wouldn’t that be a tad illegal? )

    I could have also sworn there was a declaration from IPP signed by Patrick ( I could be wrong but I thought there was one submitted in a torrent lawsuit case ) The name Daniel Arheidt pops up as a Technical Director at Guardaley in declarations submitted in porn trolling lawsuits.

    Daniel Arheidt name is also on IPP declarations as a “consultant” in affidavits in torrent cases imagine that. Did anyone happen to notice that the Tobias Fieser signatures all seem to be a little off? They start out similar, but towards the middle and end they look different. It seemed this way on all three that are in Pietz’s Exhibit documents.

    I also have to wonder why some of the IPP affidavits are not notarized by anyone before being sent over to Lipscomb. That strikes me as a tad odd. One of things I would like to hear come out is who all has a intrest in Malibu Media LLC? Lipscomb will reiterate that is are two favorite purveyors of porn Colette and Brigham, but I have to wonder if there are not some other partners in this, After all Ben had his hand in Guardaley and is USCG…so one has to wonder.

    If Pietz get the Judge interested in all of the nuances that he has come up with , Lipscomb is going to be up against it. I can see the strategy of stone walling lasting very long if the Judge orders him to produce some of the documents and who has an interest in what in these settlements, you can pull a Prenda and delay, deny and deflect but only for so long ( Ask John how that is working out for him now)

    It will be interesting to see if the Judge is going to consolidate these cases and what Lipscomb will do if the dominos start to fall his way. Judges dont like to be treated as stupid and they definitely don’t like some of the games that go on in their court rooms.

    Lipscomb I believe is in a tough spot here. He has been insisting in his declarations that if need be Tobias Fieser can testify and appear to provide testimony to his findings of infringement, and this has been seen in many Malibu cases… but no all of a sudden it seems like he isn’t too receptive to that Idea.

    Now this is Hypothetical, but is Tobias Fieser our new Alan Cooper? There could be a possibility that he might be a figment of imagination, now of course this is Hypothetical and we don’t know whether this is the case, but there is always the possibility ( Just like the possibilty that I have the winning Powerball lottery numbers for next weeks draw already.)

    Pietz motion is an interesting read and his exhibits are pretty good and do a nice job of filling some blanks and connecting the dots, so it will be interesting to see what Lipscomb’s response will be and what the Judge thinks of all this.

    I predict we are going to see Lipscomb button down the hatches and try to fight vigorously that Pietrz is out to lunch and that all this means nothing. ( aka the Prenda strategy) Needless to say this should be interesting to watch the flurry of denials and counter claims of bad faith and being mean and making it personal and they hurt out feelings and yada yada yada

    As for Hoppe waving his finger at the ISP’s and telling them you can’t do that, well good luck with that. I don’t see the ISP’s cowering in the corner. In reality all the Hoppe can do is run to the court and try to get the Judge to get an order to get the ISP’s compelled to turn over the documents.

    Now could Hoppe succeed possibly, but I think with the exhibits that Pietz has filed and the Motion that Pietz has filed and the reasons set forth in it, I think Hoppe would be in tough if the court thinks there is some shenanigans at play in his court room, especially with the court shopping being alleged in these cases.

    I will be looking forward to the updates!

  2. First @SJD, I have to stop checking for updates of your site so late in the day. After finding this right before I was planning to go to bed, I am now operating on far too little sleep.

    Second, I don’t understand why people are having such a hard time believing that IPP & Guardaley are not separate and distinct firm. After all it is normal business practice to have your major competitor handle job interviews for you. (That was sarcasm if anyone had any doubt)

    Third, I am glad to see Pietz have Malibu clearly in his sights. He has shown the ability and determination to get to the bottom of these schemes in the past. Life just got tough for Lipscomb and his crew.

  3. I left something out of my previous reply. Pietz did a masterful job in the the AF Holdings case before Judge Wright showing how AF Holdings was connected with Prenda Law, and Steele and of course our good friend Salt Marsh and how some of these entities are registered at Steele’s sisters address and she happens to date Anthony Salt marsh ( I know an amazing coincidence isn’t it )

    If you recall that wonderful flow chart Pietz put together was a big nail in Steele and Hansmeier’s porn trolling business and Judge Wright found it quite fascinating. You would have to think Lipscomb would have to be willfully blind to not recognize the danger Pietz and his sleuthing fellow defense counsel present with the information they have gathered.

    Lipscomb will have to worry just how much weight the Judge will give Pietz and his fellow counsel’s exhibits that are going to be brought forward in this case , I don’t think Lipscomb will be able to just dismiss and walk away from this mess he has created.

    Lipscomb may wish he had walked away before this is over. I would predict that the judge is going to throw some serious side eye when he gets a glimpse of what Pietz and Co have presented and some of the facts from other cases around the U.S. not to mention the sheer amount of porn suits Lipscomb has filed on behalf of Malibu Media LLC.

    The sheer amount of lawsuits on behalf of Malibu in the state Maryland alone and the court room shopping should raise the hair on the back of the Judge’s neck. Remember that the Prenda gang did this as well and it came back to bite them hard.

    It ought to be a real glimpse if this court is going to let Lipscomb off the hook with some choice words or if Lipscomb and local counsel will be facing an OSC hearing and additional punishments could come as well such as sanctions, monetary fines and costs and of course a state bar referral and of course it could also include the Prenda recommended invitaion to the IRS Criminal Division and an Investigation by state or federal AG’s…of course the possibility of RICO… that is all of course just hypothetical.

    You never know what a Judge will do when he fells his court and the system are being gamed. Time will tell.

  4. Wonderful argument….reminds me of some very nice pictures from the previous blog post about Prenda’s appeal hearing on this site….especially the one with the pants.

    Vexatious litigant status, anyone?

    But it seems to me in this case that a “bare right to sue” has been assigned, as it was in “Righthaven”…not formally, but certainly informally.

    OK, “BOOM!”… who’s next on our radar, Ms SJD???

    • Section 1 of both documents are the same, so don’t just get to the very appropriate Biblical reference and think you are on the some document.

  5. It is totally unfair to involve Pietz in these cases. When you inject an ethical attorney with a clear grasp of the facts, knowledge of the law, and the ability to write clearly (Morgan should thank his second grade teacher for a job well-done drilling him on the elements of grammar and sentence construction), it becomes nearly impossible for a hard-working smut peddler to make a dishonest living. Think of all the wasted money shots.

  6. I just spent some time finding some information of the local council, John C. Lowe, that Morgan Pietz has teamed up with in Maryland. To say that he didn’t find him on Craig’s List would be an understatement. Mr. Lowe is no inexperienced lightweight. Besides arguing (and winning) a landmark case in front of SCOTUS, he has an extensive IP resume working on the patent side of IP.

    • I didn’t mean to imply that Mr. Pietz found Mr. Lowe, it well could be the other way around, but either way they look to be a formidable pair, that Lipscomb isn’t going to be happy dealing with.

  7. Here’s the line I love:
    To the extent the appellants dispute the district court’s factual alter-ego findings, but fail to cite to the relevant portions of the record, their appeal is frivolous, subject to dismissal, and independently sanctionable.

    Predictions, anyone?

  8. Hey all, this is amazing work you’re doing here and many are eternally grateful for it. I’ve been thoroughly combing through this site and dietrolldie. There is simply a ton of info to process; I was recently mailed a letter from my ISP claiming Malibu Media was seeking my contact information. My name is on the cable bill however I did not download their movies, I may or may not know of a housemate(several college kids living together) who did. I have until May 2 to file motion to quash. I’ve seen this has been largely unsuccessful. Would you suggest I give Mr. Lowe, the local lawyer, a call? Or should I simply wait and pull the PRP tactic when contacted. I do not mind being named, as I’m not afraid of being accussed of downloading porn that I did not download, however I have no money to settle or really for a lawyer. The person who may or may not have downloaded the movie has said they would pay the settlement if it came to that. Is there any legal repercussions with jobs for settling? I’m pursuing software dev work with government contracts. It is also of note I am willing to have my computer scanned if that will prove my innocence.

    I apologize for the long reply and any and all advice would be incredibly helpful and I would be eternally grateful. Thank you guys for all that you do and keep fighting the good fight.

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