Guardaley | X-Art
Battle with copyright troll Malibu Media is raging on in Maryland
This is an update to my recent post “Defendant makes a powerful move against copyright troll Malibu Media in Maryland” (MDD 14-cv-0223, 14-cv-0257 and 14-cv-0263). While normally I simply modify the original post, adding new developments, I have decided to write a separate post: these cases are very important. These three Maryland suits are among the few Malibu Media litigations¹, where defense can finally crack the tough nut of the Lipscomb-Germans-XArt relationship, the very foundation of Lipscomb’s extortion machinery. I’m almost sure that such revelation will cause the collapse of Prenda #2. Thus, we have been keeping an eye on these cases, and we invite all the defense attorneys to pay attention to them as well.
It is not unexpected that Lipscomb’s firm took Pietz’s powerful motion extremely seriously, and on 4/29/2014 Jon Hoppe filed a 35-page opposition. While being rather elaborated, this opposition is full of evasiveness and pseudo-technical stuff. Nothing new: usual Lipscomb’s slithering through the cracks between the words and their meanings.
On 5/15/2014 Morgan Pietz responded to plaintiff’s opposition in two pieces:
- ISP subscriber’s reply in support of motion to: (1) intervene anonymously; (2) consolidate malibu media cases; and (3) temporarily stay outstanding subpoenas;
- ISP subscriber’s opposition to Malibu’s motion to strike — the declaration of Morgan E. Pietz.
While the “opposition” piece mostly deals with Malibu’s procedural attacks, the “reply in support” masterfully calls out
- Lipscomb’s forum shopping:
Since Malibu refuses to do so voluntarily, unless the Court orders Malibu to show cause, Malibu can keep dismissing any defendant who starts asking the right questions, and the issue will never see the light of day, with lawsuits and discovery, predicated upon work done by a champertous contingent fee witness, continuing indefinitely.
- his dishonest statements:
Malibu’s assertions that each of its cases is totally different is basically absurd. Malibu files the same complaint. It relies on the same (questionable) declaration from Tobias Fieser and IPP to file the same early discovery motions. It sends out the same deposition notices, at which it presumably asks the same questions. If it ever actually gets so far as serving anyone, it sends out the same overbroad discovery. When Does respond and seek discovery of their own, Malibu makes and then stands on the same boilerplate objections in each case. And then, as a last resort, if any defendants prove difficult in insisting on relevant discovery, Malibu files the same notice of voluntary dismissal without prejudice.
- and unwillingness to let anyone under the cloak of his shady dealings with Germans:
[…] it seems that Malibu was not fully candid as to the inputs that went in to fashioning the system, and that it has now figured out how to game it, by simply dismissing any case where defendants start asking questions about the champertous German computer firm truly behind this litigation business.
Follow-up
¹Another notable case is ILND 13-cv-06312, where Lipscomb throws tantrum after tantrum and sabotages a legitimate discovery. I wrote about it a lot in the past, and maybe I’ll cover recent disturbing developments soon (in short, Lipscomb, just like Prenda last year, is scared about all the publicity and may be mulling an idea of shutting the critics down via a SLAPP lawsuit).
Fight © Trolls 
Lispcomb is so afraid of the truth getting out about the true nature of the relationship between his enterprise, X-Art and IPP that he will do absolutely ANYTHING to stop it. If Pietz’s motion goes through expect Lispcomb to offer a hefty settlement (bribe) for these defendants to STFU, drop the counterclaims and allow the case to be dismissed.
I’m just hoping that at this point at least one of these defendants is more motivated by watching Malibu Media go down in flames than by money if that moment comes. Months and months of being abused by world-class assholes will do that to a person. =)
Aren’t you supposed to be a Christian, Keith Lispcomb? Don’t you know that the truth will set you free? If you have nothing to hide what are you so afraid of? Oh right I forgot you converted to chri$tianity a long time ago, in which case you have a lot of things to be afraid of. The truth especially.
From the time Fantalis starting asking up to the present it is pretty clear that the financial arrangements amongst this triad is something they never, ever wish to see daylight. With that in the back of my mind I just had to smile when I read this line on page 2 of the Pietz Reply:
“However, Malibu’s actions in the case before Judge Motz strongly suggest that, for Malibu, the
“appropriate time” to address the issues related to the contingent fee agreement with its key witness, is never.”
In my view Pietz makes more than a few compelling arguments and, obviously, I hope they win the day.
With the material Pietz has assembled it makes you wonder whether some enterprising lawyer is going to take a run at them via a class action lawsuit on behalf of the Does who paid out prior to 2014.
Lippy… the line to sue me forms to the left, princess.
I suggest you consider what happened the last time it was done.
While you like to believe what happened to Pretenda isn’t going to happen to you, because your smarter/faster/better – maybe you should look around and notice you’re on the same path.
You aren’t smarter.
You aren’t better.
You aren’t faster.
Consider you actually have “real” clients who when the going gets tough are going to sell you out to save their own asses. You taught her to cry on the stand, in retrospect might that bite you in the ass?
When one looks at the Bellwether trial, that Lipscomb claims is the one and only trial that he won, one finds he settled with all three defendants prior to the trial and the bench trial concerned only the award for one of the defendants who committed perjury and tainted the evidence of his hard drive. If Judge Baylson was a dead horse, everyone should demand Lipscomb stop beating him. It goes without saying when only on side provides testimony with no cross or questioning, it is nothing more than a clown show.
Lipscomb also mischaracterizes the finding by the Berlin Court where it was discovered Guardaley claimed a printer was infringing copyrighted material. The software is flawed or the there is fraud taking place because printers cannot join swarms and download files.
Lipscomb spent nearly a year claiming his verbal agreement with IPP couldn’t be disclosed or discovered because it was a trade secret. He still hides exactly what the agreement is or was. In 35 pages Lipscomb still is hiding what this is or was all about. So we’ll just have to take Collette’s testimony as true. That IPP gets a percentage of the amount in settlement or won in trial.
Given Lipscomb preventing discovery across the nation on hundreds if not thousand of cases claiming trade secrets, how is it that two supposed competitors actually has one hiring the others employees. Guardaley hiring IPP’s employees for them?
The view from 10,000 feet… we have an infallible black box based in Germany that can prove everything we claim. So why is Lipscomb settling for $750 per infringement, instead of the statutory $150,000? That is a lot of money to be leaving on the table and walking away from.
Nothing to see here judge, Guardaley is still doing business in Germany and Canada. He doesn’t mention the director and owner of Guardaley lost his license to practice law, was fined into bankruptcy, and went to prison. England shut Guardaley down.
It is blatantly obvious that if one wished to end the pirating there are numerous things Malibu Media / X-Art could do. One of which is to go to trial and get a multimillion dollar award. This would make national news and wake everyone up to what might happen if you steal.
Another mysteries statement by Lipscomb is that these settlement only represent 5% of Malibu Media’s profit. This is simply an accounting trick. He needs to reveal the percent it contributes to gross revenue to be taken seriously.
The settlement’s may only represent 5% of MM’s profit, but I believe they represent about 99% of Lipscomb’s income.
Exactly, the Field’s could pull a million out for themselves as administration fees. Besides being a weasel, we should start calling Mr Lipscomb, The Riddler.
Lipscomb can only hide the IPP/Guardley fee agreement for so long, sooner or later a Judge is going to make him bring forth the agreement for the court and defense counsel to have a look at even if it is done under seal.
The fact that Lipscomb and Malibu fight tooth and nail to avoid having the agreement with IPP/Guardley come before the court only leads to more speculation about what the details of that agreement, and why they claim it’s a trade secret ( we all know what a bunch of horse hooey the trade secret argument is…hell Kernel Sanders and KFC have a better shot at not revealing their spice secret than Lipscomb does of keeping this so called trade secret agreement hidden.)
While I read the argument that Hoppe filed in his Objection ( I am amazed that for 35 pages there isn’t a lot of substance to it ) and there were a lot of case law cited, it seemed more filler and doesn’t really refute Pietz claim that the IPP/GuardleY relationship is still in play nor any evidence to nullify how the IPP methods of tracking infringers is accurate.
Yes there is a lot of fluff and big terminology and technical speak to make it seem their monitoring and tracking of copyright infringers is more substantial than it is, but really it boils down to the same old spiel we have heard and seen in court documents before. So basically all filler and no meat.
The interesting thing is how Lipscomb and whatever local troll is schilling for him, seem to love to use the IPP /Tobias Feiser declarations as evidence that infringement took place when these Malibu lawsuits are field to in order to get a judge to issue an order to the ISP’s for their subscriber info and get early the ISP subscriber name to bang out settlement letters, but yet they say that Tobias Fieser can not testify to the evidence he gave in his affidavit on behalf of IPP.
Lipscomb and Malibu seem very very intent on Tobais Faiser never seeing the inside of a U.S. court room even though Feiser was submitting evidence on behalf of IPP in connection with Malibu lawsuits. There is a section in Hoppe’s 35 page rebuttal that states and I quote:
” Mr. Fieser is the only employee of IPP who may testify. His testimony is unnecessary.
Therefore, Malibu will not likely call Mr. Fieser. ”
So Lipscomb claims he will present evidence to prove Malibu’s works were infringed , but won’t call to testify the person who submitted the declaration of the so called infringement to the court with which the Malibu legal action was started with in order to get early discovery from the ISP’s. Sounds like there is some irony there!
This also would go to Michael Patzer, once again Lipscomb seeks to not have Patzer testify as well on IPP’s behalf. Lipscomb seem to only want Paige to do any testifying. Now if that doesn’t make you scratch your head what does. The mere fact that Lipsomb /Malibu love to use IPP/Feiser declarations, but yet don’t wan’t Feiser near a court is very revealing to say the least, and very suspect.
One would have to think that if Lipscomb/Malibu is going to use Feiser/IPP declarations then they should have to produce Feiser to testify to his knowledge of what occurred and how he reached the conclusion he did and what methods were used. The fact that Lipscomb wants to keep Feiser away is starting to make me think he is more of an apparition.
I cant really see how Paige would be able to testify to anything. Paige affidavit was not used in the begining of this lawsuit and an order for the ISP’s subscriber info was predicated on Feiser declaration in support of getting the judge to issue an order for the ISP’s to turn over subscriber info. So why would the court even allow Paige to testify.
Lipscomb would have to be dreaming to think a Judge would let Paige testify to support Feiser and IPP declaration and how it works and the results they achieved with this secret software. I don’t see Paige being able to testify to something he never saw and had no control over as to how the results were obtained. This would be hearsay at best IMHO.
Pietz is spot on in the fact that Feiser and IPP should have to testify to how they achieve the results they do and the methods they use to get them. If Lipsocmb wants to use IPP/Feiser declarations then he should have to produce Feiser and let him speak to support his affidavit submitted to the court. Period.ake Lipsomb over the coals every chanc he gets
I get the feeling that Lipscomb will be up against it with PIetz.. Pietz and Ranallo did a great job in Judge Wrights court room with Prenda to show how bad Prenda was in there dealing with Porn troll lawsuits. Granted Lipscomb isn’t as dumb with knowing when to walk away unlike the Prenda gang was, but Pietz is a heck of a foe to take on.
This will be interesting to see where the Judge goes with this.
Not only has the piracy of digital media continued unabated, the piracy of x-art media actually started as soon as they began the anti-piracy campaign.
Here is the very first x-art upload that began it all.
http://kickass.to/x-art-aka-beauty-is-divine-may-2009-update-t2636839.html
Also it is worth noting that this x-art or xart or whatever shell is actually beautyisdivine.com
This is never brought up. Odd that, no?
This form of lawsuit is not going away. Players will come and go as the method is refined. I only hope that the focus turns to the rip-off dvd shops and away from Joe Sixpack and his curious kids.