Guardaley | X-Art

Michigan judge grants Malibu Media’s motion for default judgment… with a twist

Can granting a motion for default judgment be a benchslap at the same time? Apparently.

Seeing people punishing themselves by not replying to trolls’ accusations makes me sad, very sad. Fighting against a collection agency or US Marshals is orders of magnitude more difficult and painful than fighting against porn copyright trolls. Every month we witness more than one default judgment, and the awarded amounts are Kafkaesque: a yearly income worth of fines for allegedly sharing a bunch of cheap porno flicks is an insult to the US Constitution (I’m talking about the Eight Amendment).

US Federal Judge
Robert H. Cleland

Yet this time, reading Judge Robert H. Cleland’s order issued back in October 2013 (Malibu Media LLC v. Lara Dupius, MIED 13-cv-11435), I couldn’t suppress a laugh. It was clear that the judge, while being bound by law, so he couldn’t deny the motion (which is 100% understandable), expressed certain disgust towards Malibu’s “counsel” Paul J. Nicoletti.

As a result, the amount defendant ordered to pay is 3 times less than the trolls demanded, an absolute statutory minimum: $750 per “work” times 20¹ = $15,000 total.

And it’s getting better as we keep reading:

[..] Malibu is awarded attorney’s fees and costs in the amount of $1,679. The court finds Malibu’s request for $2,550 (at a rate of $300 an hour for eight and a half hours) in attorney’s fees to be unreasonable—Malibu has filed hundreds of similar actions across the country and its attorney’s assertion that he spent an hour drafting what appears to be a boilerplate complaint, and an hour and twenty minutes drafting a two-page motion for default judgment strains the court’s credulity. The court further notes that Malibu’s requested attorney’s fees continually reference multiple defendants—a curious request given that there has only ever been one defendant named in this case. Accordingly, the court awards Malibu attorney’s fees for five hours at a rate of $250 an hour. See State Bar of Michigan 2010 Economics of Law Practice Summary Report, at 9 (stating that the median attorney billing rate for an attorney whose office is in Oakland County, south of M-59, is $250 an hour). The court awards Malibu its requested filing fee of $350, but reduces Malibu’s requested $95 service-of-process fee to $79 given that Malibu’s requested costs are contradicted by the record.

So the moral of this story is simple: if your job or relationship doesn’t depend on the fear that your name is dragged through the mud by the “barely legal” pornographers and scumbag lawyers, do not ignore summons, hire an experienced attorney and fight back. There are judges out there who are ripe for stopping the German plague.

Update

US Federal Judge
David M. Lawson

Right after this post was published, Calvin Li and Raul noticed a very similar order (based on the one posted above) was issued in the same district, but by a different judge — David M. Lawson — yesterday (Malibu Media v. Kurt Shelling, MIED 13-cv-11436):

The plaintiff has not made a showing that justifies statutory damages in excess of the minimum amount. The amended complaint alleges merely that the acts of infringement were “committed ‘willfully,’” Am. Compl. ¶ 32, without any factual allegations to back up that conclusion. The plaintiff is entitled to $6,000 in statutory damages for the eight acts of infringement set out in the amended complaint, Exhibit B.

and

The plaintiff’s request for attorney’s fees is problematic.

[…]

The practice here is the essence of form pleading. For instance, on the day this case was filed — March 29, 2013 — seventeen other cases were filed in this district by Mr. Nicoletti with an identical complaint. Each of the complaints is seven pages long with thirty-three paragraphs of exactly identical allegations, and the amount of statutory damages and the terms of the permanent injunction requested is the same. The only difference between the complaints is the defendant’s assigned IP address, which is later used to identify the named defendant.

 


¹Lipscomb found this “legal bonanza” when he stopped filing mass lawsuits: with Malibu’s short films shared in bundles, he can claim multiple infringements from a single alleged file-sharer. This is a “feature” of the rigid, outdated copyright law: for the purpose of the statutory damages, the blindfolded Themis equally treats a multi-million cinematic masterpiece and a cheap, plotless 10-minute flick of amateur teenagers having sex. Only the most despicable cynics exploit this vulnerability to rob the population out of hard-earned money.

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Discussion

15 responses to ‘Michigan judge grants Malibu Media’s motion for default judgment… with a twist

  1. Oh, no, horror of horrors. Maybe Colette will only be able to afford the 14 million dollar mansion next!

    • Frankly I can’t wait for the day when they can’t even afford the dog house. Karma is starting to swing their way I believe

      • Eventually the continued calls to the local news and school boards about the porn house in the neighborhood won’t be ignored. If more people join in and point out their illegal doings to churches, schools, news, etc combined with their continued court losses will put them out of business soon enough.

  2. Raul shared Judge Lawson’s order yesterday on Twitter and as I said to Raul, it is flat out awesome.

    Nicoletti tried for 8 hours of billable time for filing these boilerplate lawsuits, and Judge Lawson who appears to keep an eye on cases filed in his state, looked up the case and the affidavits in them and flat out said they were boilerplate and there was no way 8 hours was appropriate and whittled it down to a single hour.

    It’s more than obvious that these two judges have looked at the Malibu Media / X-Art filings and the lawyers behind them in their state and see full well at how the system was being gamed, and they were not going to let them go hog wild and cash out on citizens in their state due to boilerplate lawsuits.

    I say kudos to both Judges for the fact that they looked past the cases before them and looked at all the filings by Malibu Media and saw these for what they were, using porn troll copyright litigation for revenue, not for protection of copyrights.

    We may be witnessing the not so subtle message by these Judges to Lipscomb and Malibu Media / X-Art that if they are going to run their game in their state and courtrooms don’t expect and easy ride from the courts with lawsuits filings like these that they deem are boilerplate.complaints filed with little evidence for maximum monetary gain.

    Honestly I hope that Lipscomb and Malibu Media/X-Art keep filing them here, with inquisitive judges like these all it will take is a defendant’s lawyer that will point out the Problems with these lawsuits and our little German friends to some Judges like these and it could be a major problem for Lipscomb and Malibu Media/ X-Art

    But kudos to these two judges for paying attention to these trolls and not making these poor ISP subscribers out to be more of a victim then they already are
    B

    If that isn’t a shot across the bow, I dont know what is. If you ask me these t

  3. In the Eastern District of PA where the Bellwether clown show took place, the judges are happy awarding $2250 per video of Malibu Media/X-Art boring teen porn. We need a good lawyer, to show them how stupid and full of holes these complaints are.

    Unless one is into young girls that look like little boys, it is unlikely one world pay even a dollar to view the masturbatory 3 to 5 minute video vignettes. One can only imagine subscribers to the website are probably 9 year old boys.

    It is amazing the judges, think justice show be blind to content in copyright law. And they will say copyright law is good for society. While in Germany a judge can determine the vignettes are not original and are potentially harmful to children. There is enough scientific evidence that supports porn addiction causes the brain to shrink.

  4. Nice, but Lambertson’s filings are making it clear that the evidence is nearly fraudulent, and that real parties in interest are unidentified. There’s also, in my opinion, a high probability of fraudulent (nonexistent) service on these folks. Anyone want to take a bet on that, or perhaps risk proving me right or wrong? [I like proof better than I like being right, lol]

    I think it’s time for an amicus brief to show up on these judge’s doorsteps with Lambertson’s latest filings.

    • I haven’t read the first ruling fully, but read the most recent one. It states not just that the defendant was served, but that he was served “personally”. I don’t think the judge who obviously isn’t happy with MM, et. all would have worded it like that, if there wasn’t pretty good evidence that he was in fact served personally.

      With Lipscomb’s track record on faulty service though, I understand your desire to see some proof.

      • “so said Lipscomb or Nicolletti, know liars and users of shoddy process servers”…so said I, with this cute little bridge in Brooklyn for sale, too…lol

  5. The judge read through the Nicoletti’s motion and thought “This guy has balls.” Accordingly, he replaced “billable hours” with “ballable hours.”

    • Sissy slim balls that is, as these cowards go into hiding offshore when it comes to discovery. Default judgments should be zero. The complaints are pure speculation disguised in mirrors of technical illusions. Some black box captured one bit of data. So what? This doesn’t prove anything at all. These judges are absolutely incompetent and/or crooked.

      • The laws need changing, but we can’t blame this on the judge. By law if the plaintiff defaults by not replying then the allegations must be taken as true. If they were truly served, then those being burdened with a default judgement now have only themselves to blame.

        • I have to agree. The law stipulates the minimum amount so that is what they give. If the defendant bothered to show up then perhaps it would get to a jury and they would just say ‘nope, get out of here with this crap’. You can not bury your head in the sand and just ignore a civil lawsuit even if you believe it to be bogus or unjust.

          I will be the first one to support changes in the law like Canada managed to do… cap off the statutory damages amount if it is non commercial infringement. These laws were made to protect creators from being swindled out of earnings by people that would profit from stealing. What is gong on here is so far from that it is not even funny.

  6. Well, I need to fix up the bridge a bit….how about you attach a few trolls to the subway tracks there, that will pretty it up nicely and then I can give it to you!

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