Guardaley | X-Art

Malibu Media’s “evidence” or the march of the Naked Emperor

For Malibu Media’s copyright trolling lawsuit to succeed on merits, plaintiff needs evidence — just enough to convince a jury that the defendant more likely infringed upon XArt’s timeless masterpieces than not¹.

There are roughly three classes of proof:

  • The defendant admits infringement;
  • Forensic analysis of the defendant’s system reveals traces of plaintiff’s works;
  • IP harvester logs torrent activity linked to an IP address that corresponds to the defendant’s ISP account.

As we will soon learn, in many Malibu’s cases none of these types of evidence is in place, and the troll turns to the fourth one.

Defendant admits infringement

This is the most favorable outcome for the troll. In this case the prospect of astronomical attorney‘s fees and insane statutory maximum make it more than reasonable to settle. There is an ongoing case in Michigan (Malibu Media, LLC v. Bui, MIWD 13-cv-00162) where the defendant admitted torrenting XArt’s smut, but has been trying to play an innocent rabbit, claiming that not him, but the torrent search engine (Kickass torrents) is the culprit. From the trolls’ prospective, this is a slam dunk case, yet it is strange that Lipscomb/Nicoletti dragged their feet for a long time, and went for the defendant’s jugular only recently, when the defendant objected to Nicoletti’s motion for extension of time.

The Bellwether “trial” falls under the same category. The defendant admitted both infringement and spoliation of evidence, and the “defense” attorneys agreed not to cross-examine witnesses. The judge’s job was only to decide the damages. This “ex parte trial” was a close shave: such luck doesn’t strike twice, and Lipscomb knows it.

Evidence on the hard drive

Probably there are cases when the pornography in question was found on defendant’s hard drives, but I’m not aware of any: most likely, people reasonably decide to settle in such cases. Yet we know several instances when Malibu’s expert found nothing. Here are some examples:

  • Malibu Media v. Tashiro (INSD 13-cv-00205): Not even Malibu’s expert Patrick Paige failed to find any pornography, he tried to muddy the water, making ambiguous and disingenuous claims.
  • In another Indiana case, after the failure to find any traces of Malibu’s illegally produced “art” on the defendant’s hard drive, settlement offer went from $7,500 to $5,000, than to $2,500, than to $1,000, and finally to a walk away — in about a month. Tells volumes about troll’s honesty and dignity.
  • Malibu Media v. Harrison (INSD 12-cv-01117): same story. Nothing was found, the defendant’s expert confirmed that.
German declarations: a Royal screw-up

German IP harvesters are now in the hot water. Defense attorneys, most notably Jonathan Phillips and Morgan Pietz seriously aimed at the Achilles’ heel of the trolls: the agreement between IPP/Guardaley, Lipscomb and Malibu Media.

So far judges have been buying declarations of IPP’s technician Tobias Fieser as a prima facie evidence of infringement. In the absence of the real evidence, trolls have no choice but to rely on champertous foreign company’s “findings” not only to lubricate a shakedown lawsuit and make it going, but to actually prove the infringement (at least in the defendant’s eyes — to convince him or her to pay the ransom).

First of all, this evidence is extremely flimsy. Just read one of the Lipscomb’s recent admissions:

Mr. Fieser has three primary functions at IPP: (1) verify that the BitTorrent computer files as evidenced by their unique hash values are copies of the original works; (2) extract the MySQL server data and make it available to IPP’s clients, here Malibu’s counsel; and (3) upload a declaration prepared by IPP’s clients’ counsel (in this case Malibu’s attorney) into a computer program and sign a declaration if a green light appears.

Unbelievable. This is the rationale behind ruining thousands of US families.

There is more: trolls manage to screw up even this simple procedure. Only a week ago I greeted a new troll from Ohio, Yousef Faroniya. Magistrate Terence P. Kemp quickly denied his motion for ex parte discovery. Why? Because, unlike some lazy judges, Kemp actually read the document; and apparent sloppiness did not escape his attention. He found that Fieser’s missive was evidently a template, by no means a declaration tailored to this particular lawsuit, as it supposed to be:

US Magistrate Judge
Terence P. Kemp

First, although, as noted above, Malibu Media has identified the IP address assigned to the Doe defendant, it has not provided other specific information generally considered significant by courts, including the date and time of the download at issue, the hash identifier, or the location of the IP address. Malibu Media has submitted a declaration from Tobias Fieser, a forensic investigator employed by IPP responsible for monitoring the BitTorrent file distribution network. However, this declaration indicates only that “a person using Defendant’s IP address engaged in BitTorrent transactions with 660 files between 07/22/2012 and 04/07/2014.” The declaration also makes repeated references to information contained in Exhibit A to the complaint but this exhibit does not appear to contain the information referenced by Mr. Fieser. Rather, Exhibit A to the complaint is a declaration of Colette Field and appears to be the same declaration submitted in support of the motion.

More significantly, the Court is without sufficient information from which it could conclude that Malibu Media has pled a copyright infringement claim. This is because Malibu Media has not identified the copyrighted work or provided any information demonstrating that it is the owner of the relevant copyright. Although the complaint states that such information is contained in Exhibit B, the Court’s review of that document indicates otherwise. Exhibit B is a declaration of Patrick Paige detailing his efforts to test IPP’s IP detection process. This declaration, also submitted in support of the motion, does not appear to contain any information regarding the copyrighted work allegedly infringed by the Doe defendant same declaration submitted in support of the motion.

 

[5/21/2014 Update: The trolls scrambled to fix their sloppiness, and today Magistrate Kemp granted the amended Malibu’s motion for ex parte discovery.]

Bonus category: fishing journey

So… what our poor trolls should do if all the proofs listed above appear to be figments of greedy imagination?

There is an interesting development in the abovementioned Malibu Media v. Tashiro case (I’d call it Jaded Pornographers v. Hard Working Nurse). After it became painfully clear that the evidence emperor is naked, and the prospect of IPP/Guardaley employees being cross-examined by attorneys of superior intellect and morals is terrifying as never before, our trolls are grasping at the straws. Just like Prenda two years ago, Lipscomb wants to deposit Comcast in a hope that something — anything — comes out of it. He wants to know:

  • (a) Plaintiff’s ability to lay the foundation for the introduction of the correlation of IP Address to subscriber for purposes of use at trial (i.e., laying the foundation that the correlating documents produced by the ISPs are business records);
  • (b) Information about the reliability of the ISP’s correlating technique;
  • (c) DMCA notices and if applicable six strike notices sent to the Defendant;
  • (d) Defendant’s Bandwidth usage;
  • (e) The number of Comcast internet subscribers in Indiana in January 2013;
  • (f) The ratio of IP addresses to internet subscribers as of January 2013.
  • [5/21/2014 Update: the same motion was filed in ILND 13-cv-06312.]

     

    This is a textbook example of a fishing expedition (not much better than Lipscomb’s Orwellian attempt to offer polygraph tests to defendants). While all the points are borderline irrelevant, (d) is the most problematic. Why is the bandwidth usage so important? According to the troll,

    Bandwidth usage is relevant because people who are heavy BitTorrent users use significantly more bandwidth than normal internet users.

    Iron cast proof of infringement! Facepalm! In the era of cloud storage, streaming and online gaming bandwidth usage proves less than nothing. Disgraced copyright troll Evan Stone tried to pull this “argument” in the past:

    There is no commercially available service that can even take advantage of the top-tier bandwidth […] You don’t need 50Mbps down to use Hulu, Netflix, iTunes or anything. Who the hell pays for 50Mbps down? P2P file-sharers. That’s who pays. That’s on the Internet side, they’re making profits from those who want to file-share.

    ArsTechnica community ripped this “argument” apart thoroughly.

    I really hope that Comcast opposes and Lipscomb adds this ISP as a defendant.

    Conclusion

    So, the march of the Naked Emperor continues, while more people suffer every day. This year alone, Lipscomb/Malibu filed nearly 40% of all the copyright cases in the USA. A lawsuit costs to the taxpayer (you, me) much more than the filing fee. Copyright trolls are thieves: they steal from all of us, giving nothing in return.

    To stop this travesty we need a judge who will finally exclaim:

    But the Emperor has nothing at all on!

    Coverage

     


    ¹ Of course I’m speaking hypothetically: out of 2100+ lawsuits filed by Lipscomb/Malibu only one resulted in a caricature trial: the copyright trolling business model doesn’t assume going all the way to the courtroom. Just like 9/11 terrorists learned how to take off but not to land; copyright trolls mastered the craft of filing lawsuits and wrestling victims — innocent or not — into paying, but winning a real trial is something that, in my opinion, Lipscomb’s ilk is not capable of.

    Update

    5/28/2014

    Today Jonathan Phillips responded to the “Comcast fishing” motion. Short and sweet — as usual:

    wordpress counter

    Discussion

    16 responses to ‘Malibu Media’s “evidence” or the march of the Naked Emperor

    1. If bandwidth use is evidence of infringement, then Lipscomb should sue the NSA, Netflix, Google, Apple, Twitch, Hula, and Facebook. The more Lipscomb goes on wild fishing net expeditions, the less it appears that he has any real evidence at all.

    2. RE: Bandwidth usage

      Bandwidth usage proves absolutely nothing. Downstream bandwidth usage isn’t even a hint of anything. Getting an hour of video will require about the same downstream bandwidth no matter if it was obtained by bit torrent, or streamed from Netflix, You Tube, etc.

      Heavy upstream bandwidth might give a hint that bit torrent activity might have occurred, but with more and more cloud services coming along upstream bandwidth is growing for the normal non infringing user as well.

    3. Lipsomb isn’t going to want to tangle with the ISP’s. Prenda did that and they ended up paying costs to the ISP’s..

      As for the Heavy bandwidth use angle, that at is more of a desperation move to keep the threat of exorbitant costs to the defendant hanging over their head. There are a lot of different ways that a.person can chew up bandwidth, while torrent use is one of them it sure as hell isnt the only one.

      Online streaming of movies, online streaming of music, online gaming and that is just a few examples. If your computer has malware or is botted could also cause a serious uptick in bandwidth usage. If your network is secure, someone could have hacked your router and be using the bandwidth as well for a number of things just as much if your network was open.

      So Lipscomb’s theory of a persons ISP Bandwidth usage being high doesn’t mean they are a torrent user. You can file that in the shoulda, woulda, coulda category.

      It is nice to see that Judge Kemp actually looked and read all the affidavits and seen them for what they were boilerplate with little factual evidence to support the alleged offense that led to the litigation. It would be nice to see moire judges look at the facts instead of just rubber stamping everything. The positive in this is that if another torrent case crosses Judge Kemp’s desk, it isn’t going to just get the rubber stamp to extort and will get scrutinized.

      I am anxious to see how Lipscomb and the local troll will deal with Judge Kemp’s rebuke of this troll lawsuit. I don;t see Lipscomb wanting to miss the chance to extort -er- settle with people, that would leave a pile of cash that he couldn’t get his hands on and i don’t see him wanting to miss a mass cash grab.

      Let’s hope Judge Kemp brings his finding in this case and notifies other Judges in the district how flimsy the facts of Malibu cases are evidence wise and maybe we have the possibility of more Malibu cases that were filed these getting tossed.

      • “The positive in this is that if another torrent case crosses Judge Kemp’s desk, it isn’t going to just get the rubber stamp to extort and will get scrutinized.”

        I think the likelihood is that if another torrent case hits Judge Kemp’s desk, it will for some “very good” reason be dismissed without prejudice and be refiled hoping to hit some other desk.

      • This explains how Paige can come up with the most bizarre theories of how the defendant could have pirated Maibu Media / X-Art stuff when he finds no evidence. What a riot Lipscomb’s crew is turning out to be. It seems all of his foreign investigators have the same rent-a-mailbox work place/corporate headquarters.

    4. Hello, SJD. 🙂

      I’ve not commented here before, but I follow the blog with some interest. It’s good to see that some have the courage to stand up to thinly-veiled extortion outfits, such as Prenda and Malibu. Thank you for doing something good.

      I feel a need to say how astounded I am at the notion that piracy uses more bandwidth than other internet uses.

      To be clear, I must confess I actually am a committed pirate, although I’m fairly sure I’ve never torrented anything likely to show up in a trolling lawsuit, in large part due to not having much interest in the subject matter (I’m all for good porn, but having seen a few clips, the kind of rubbish championed by the likes of Lipscomb doesn’t seem worth the effort involved in watching it, much less the greater effort of locating, downloading and seeding it via bittorrent).

      Looking over my bandwidth record – which my ISP helpfully lets me view via their website – I find that my download usage is variable, but consistently between 100 and 200 GB a month. Breaking this figure down, only about 10 GB is due to anything remotely piratey, the vast majority is instead mostly consumed by legally-authorised, paid-for Steam videogame downloads and various legal TV streaming services in use by other members of the household.

      My upload usage is noticeably higher, but only because my BT client is set to unlimited upload – if I put the limiter on, like most pirates do, the figure will plummet like a rock thrown out of an aeroplane – and if I used Skype more often (or more people that I actually want to talk to would get their acts together and get online), I’m quite sure I could dwarf even the higher figure entirely.

      A point of context: the PC game Skyrim, bought legally via Steam. Including the game and all the mods I downloaded (also legal), it’s a whopping 30GB in size, not including the GBs of mods I downloaded, tried out and subsequently deleted. Due to something called save-bloat (don’t ask) my saved-game files alone are 200MB in size – and they synchronise automatically with Steam’s cloud service (also legal) whenever I leave the game. If I still played regularly (say, once a day), I’d be using 6 GB upload a month just on that one game – and when I played regularly, it was usually up to half a dozen times a day.

      If you compare a little old lady who only uses her connection for email and Facebook with someone who obessively pirates every new TV show, film and game they can find, the contrast is sharp – but not as sharp as the difference between both of those put together and a household that knows its technology and uses it well.

      From my own experience, Lipscomb’s theory is utter nonsense.

    5. If Malibu Media can “prove every case” as Lispcomb told the New Yorker, it sure is strange that so many of their cases are dropped. That’s a whole lot of money being left on the table there for all those slam dunk cases of theirs.

      No wait, scratch that. He explained that Malibu Media “drops a suit if there’s any hint of a mistake.” That explains the cases they drop of course, meaning they only have an 70-80% error rate in terms of the people they bring suits against. Not bad!

    6. SJD, is it just me or did you have to remove some part/and or comments. I gather Lipscomb and pals may have objected? Just curious.

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