Guardaley | X-Art
Copyright troll Yousef Faroniya and his telephonophobia
Last week I was happy to find out that Jason Sweet for the first time appeared on behalf of a defendant in one of the myriad shakedown cases filed by Guardaley / Keith Lipscomb “on behalf” of a hardcore pornography purveyor X-Art/Malibu Media.
There was a good motion to quash subpoena filed in Malibu Media v. John Doe (OHSD 14-cv-00493) on 8/22/2014. The crux of the argument is, in my opinion, bulletproof: if the Doe is represented and his/her attorney is willing to accept service and otherwise be a buffer between the plaintiff and the defendant, there is no need for Lipscomb to prematurely know the defendant’s identity. Hence, the subpoena is moot.
The most interesting part of this motion, however, is Exhibit A — the email exchange between Jason Sweet and Malibu’s Yousef Faroniya.
The leitmotif of this exchange is the defense’s repeated attempts to establish a dialog and Faroniya’s irrational fear of the telephone. This eyebrow-raising behavior made Sweet believe that it was not actually Faroniya who was on the other side of the conversation:
Atty. Sweet, counsel for the Defendant, first reached out to Malibu Media’s counsel on July 31, 2014 to inquire about a possible settlement. From the outset, Malibu Media’s counsel refused to speak via the phone, requiring communication via email—which left Defendant’s counsel dubious as to who he was conversing with.
Looking at the style of the writing, I rather think that it was indeed Faroniya, but I can’t vouch for that. I think that it was Faroniya because: first, I have not seen this style in the writings by his bosses from the Miami Troll Central; secondly, a snarky attempt to lecture an attorney who was instrumental in Prenda’s demise is a hallmark of a young arrogant prick such as Yousef.
Just look at this:
The language in this Complaint has been attacked by dozens of defendants and Malibu Media has never lost a motion to dismiss. The case law on this is extensive. If you feel that you have an angle that could result in dismissal prior to ISP discovery on all the Malibu Media cases, then nothing I can say will dissuade you from eventually doing so. It is my strong belief that you will fail in this pursuit, and the costs incurred by Malibu in defeating your motions will eventually be borne by your clients.
Compare this overconfidence to the arrogance of infamous John Steele: here is one of his comments on this blog at the time his racket was going smoothly:
When Freetards file their silly MTQ. and they keep getting rejected, its [sic] because your [sic] telling the judge, “Judge I know you looked at this case, and issued an order. But let me tell you (in a completely conclusory, non-legal argument) why you are a fool that made a mistake. Here is a news flash, the judges know from day one all about our cases, and have spoken amongst themselves about these cases in judicial conferences. They know when they sign a discovery order what it means.
I’m sure that sooner or later we will laugh at Libscomb’s young crafty attorneys’ hubris as we laugh at Steele’s today.
Later in the email chain we see threats of sanctions (of course! — threats is the language of extortion) over Sweet’s alleged interference with subpoena — a controversy that would be easily resolved if Faroniya overcame his phobia and picked up the damn phone.
And finally,
[…] once Defendant’s counsel began asking pointed questions, Plaintiff’s counsel ceased any meaningful communications.
Note that during the course of correspondence, the plaintiff kept attempting to learn the defendant’s identity: as I understand, to figure out if the Doe is capable of paying the ransom.
It is hard not to admire Booth Sweet’s style:
The settlement demand:
As you can see in Plaintiff’s Complaint, your client infringed a total of 30 separate works. Plaintiff is willing to settle for $22,500 (750*30). My client believes this is a fair offer given the $2250 per work decisional authority in the Malibu Media Bellwether case.
…was met with a counter-offer:
My client is willing to pay $449.95 — the cost of filing the Complaint and a one month subscription to Plaintiffʼs website.
While chuckling over this hilarity, I want to note that Jason Sweet is too generous: X-Art subscription with unlimited downloads is only $19.95 per month now, and if a subscriber gets bored with repetitive scenarios (or, more precisely, the lack thereof) and cancels the subscription, he is offered a promotional rate of $9.99, or 1.8 cents per flick if the subscriber has enough bandwidth and desire to download them all, a long shot from $750 the trolls demand, much less than $150,000 they threaten with (0.0024% and 0.00001% respectively). This is the travesty of the freedom to choose statutory damages even when they parsecs apart from the real ones.
Updates
9/29/2014
The appearance of Booth Sweet understandably alarmed the trolls. On 9/12/2014 Lipscomb filed a long and winding opposition to the motion to quash discussed above. The entire opposition is rather a laughable attempt to legitimize Malibu’s abuse of the court system.
Of course, the trolls employed an appeal to emotion — a tearful story of poor pornographers who can afford neither Bugatti nor a castle in Nice and doomed to languish in a 16-million Malibu mansion and hide their Ferrari from the neighbors in shame — all because of evil, evil pirates. In addition, Lipscomb never fails to brandish the bellwether trial myth.
Jason Sweet’s 9/26/2014 reply was, as expected, sharp and fun to read. It starts with the debunking of the said myth:
As an initial matter, Malibu Media often touts the aforementioned “bellwether trial” to distinguish itself from other copyright trolls. Invariably though, they overstate the significance of what has been described as little more than a show trial, and avoid mentioning the facts that led to it.
…and proceeds to thoroughly expose Lipscomb’s poor argument why he needs the defendant’s identity when the defense counsel is ready to accept service. More than once Lipscomb affirmatively stated that the express purpose of the subpoena is to serve the defendant. While the troll was lying, his words nonetheless ricocheted.
Malibu Media has not been honest with the Court. It pushed for expedited discovery on the grounds it was necessary to complete service, but when presented with an alternative method — namely, serving the Defendant’s attorney — it refuses to effectuate service.
Instead, we learn that Malibu Media seeks the information not to serve the Defendant, but rather so it may conduct an unfettered assessment of the strength of its case and ostensibly, the assets of the Defendant before proceeding any further. Neither instance falls within the intended purpose of expedited discovery or the Copyright Act.
10/03/2014
The trolls are seriously scared by the prospect of creating a precedent that courts would allow serving an anonymous defendant through his/her attorney. So on 10/3/2014 Lipscomb & Co filed a motion for leave to file a sur-reply claiming that Jason Sweet raises new arguments in his reply. It is both sad and funny that paragraph 6(A) is exactly the argument that Prenda’s racket was largely based on, namely that defendant has no standing to question the subpoena:
[…] Further, Defendant does not have standing to raise this argument because he is not facing any inconvenience, burden, or expense. Indeed, the ISP is the one responding to the subpoena and they have not objected to compliance. […] (“The Sixth Circuit has observed that ‘[o]rdinarily, a party has no standing to seek to quash a subpoena issued to someone who is not a party to the action unless the party claims some personal right or privilege with regard to the documents sought.”)
Sounds familiar?
Fight © Trolls 
I’m an X-Art subscriber. News of the way their parent company prosecutes alleged illegal downloaders makes me rethink whether I should renew. It makes me feel dirty for throwing money their way. I want to support porn companies who don’t employ lawyers and the courts like you’ve shown on this blog. It’s deplorable!
Come to think of it,SJD — porn is ubiquitous and serves a purpose for singles and couples alike. What if you created a ‘whitelist’ of porn companies that *don’t* employ these kinds of embarrassing lawsuits? Wouldn’t this allow sensible people to choose positively rather than negatively? Perhaps you even have friends in the industry who could promote such a list? Maybe this puts you too deep into the porn realm, but I think it would be beneficial for those among us who enjoy porn (a.k.a., most everyone) but don’t want to support litigious assholes (also a.k.a., most everyone).
It is far easier to fit a camel through the eye of a needle than to sort & catalog all of the porn houses out there.
From the big boys to the tiny niche performer (and OMG you Str8s are WEIRD) many have taken a stab a copyright trolling. Some have thought better of it when they get a little media attention, but does that mean they should still be on a list? Some have filed cases that look like trolling cases, but were not.
Most of us here are focused on the basics.
– Expose the trolling operations.
– Mock them till they cry. <— I excel at this one.
– Be a beacon to those targeted, showing the way to information.
– Provide the information and resources that people targeted need to have to make an informed decision.
As a consumer, you are free to make the decision that works for you. I'll still judge you if you opt to stay a MM customer, but then I'm harsh. At this point it is clear that their customer base isn't that important to them, just churning out more movies that 'magically' appear online under odd circumstances and lead to a new wave of lawsuits. But hey at least they might stay in business now that they've stopped breaking the laws while filming.
Despite the hype we aren't fighting against porn, just trolls. I think some people don't get that distinction, or like to use that to draw attention away from the abuse of the legal system happening.
I’m not passing judgment on porn viewing, however people need to be aware that it causes the brain to shrink. One is better served and happier using the time for real human interaction.
There are far too many pornographers to come up with any kind of comprehensive white list but a black list is easy. Litigious asshole in the last two years begins and ends with Malibu/X-Art.
Prior to that, before joinder was defeated, many more pornographers were in on it – Lipscomb’s gang alone partnered up with Third Degree, Patrick Collins, K-Beech, Raw Films, and possibly others, rfcexpress has page after page of Does results to go through. CEG only sends threatening emails these days, but when mass suits were allowed they occasionally tried to go to the courts too, Rob Cashman put together a likely incomplete list of their clients, the link is under “CEG-TEK’s client list 6-17-04” on the left bar.
After reading the documents I have to say that my spidey sense is tingling away. Malibu has instructed it’s lawyers NOT to speak to any of defendants counsel over the phone? The level of paranoia seems a tad over the top in my opinion.
With Yousef stating that Malibu ask’s all communication be done via e-mail with any defendants counsel and itself seems to go against the professionalism and standards that lawyers are governed by with the rules of conduct that they are bound by with the various State Bar Associations and the American Bar Association.
With that said it beehooves me why Malibu has chosen to go the route of communication with defendants counsel by e-mail only. What could have occurred in a Malibu case that would have garnered such a directive.
The only recent cases were communications between opposing counsel where allegations of conversations and what was said in those conversations was disputed in court filings that I can think of is with some Prenda Law cases and of course the recent ELF-MAN LLC vs. Lamberson case, and we know that is fact to the filings in the court record.
Now what could have taken place to cause Mailbu to fear conversations with opposing counsel, that are normally par for the course in all sorts of legal cases ( not just porn trolling copyright cases ) to be ranked right up there with the plague and avoided at all costs ( my opinion of course from an outsiders viewpoint )
I guess if you looked at the ELF-MAN LLC vs. Lamberson case and the fiasco that has become for the attorney’s involved on the Plaintiffs side, our German monitoring friends ( special shout out to Darren M. Griffin and fictitious Alan Cooper ) and those behind ELF MAN LLC, I would want to have that fatwa handed down as well for the minefield that case has become for those on the Plaintiff’s side.
Let’s Hypothesize here for a minute. Could it be that after our little German friends and counsel in ELF MAN LLC vs. Lamberson and the various lawyers on Plaintiffs side are facing problems in the case which will be heard by the Judge who will rule on the various motions at hand and the possibility of costs and sanctions against Plaintiffs and possibly said counsel of Plaintiff, that the German connection Grand Pooh-Bah passed down the fatwa that made conversing with opposing counsel strictly taboo? Of course this is just hypothetical, but one has to wonder.
Would our German friends be so worried as to take a drastic step of issuing a radio silence order to the troops, insisting that silence is golden? Perhaps.With such a rock solid and through investigation of the alleged infringement and evidence, top notch legal representation around the U.S. and a client making the finest artistic smut that 9.95 can buy and that the just over 18 crowd of purveyors seem to gravitate to, one would have to wonder why they would fret about speaking with defendants counsel.
In my opinion that is strange to say the least. Fear and Paranoia must be in the air, but surely with a rock solid case there should be of little concern to Mailbu and it’s counsel in speaking with defendant counsel in regards to the case at hand. Maybe the confidence there once was isn’t there, could be, or I could be wrong…who knows… right Keith?
Did anyone else happen to read in the back and forth between what would appear to be replies from Yousef to Jason, that Yousef just used a regular template type block with his name and various information about his firm and address and phone number, but never typed his name or initials in most of the replies to Jason, except for ” YMF ” in one reply?
Just my opinion but does that strike anyone else as odd? Why would you leave your initials in one reply when you have consistently not done it with others? ( as in this particular email chain ) I Just found that odd.
I am surprised that Malibu local counsel would adopt a fatwa like this to do no voice conversations with defendant counsel(s), surely skilled lawyers should be able to be friendly and respectful adversaries to deal with each other with some decorum in regards to litigation discussion of cases with respect to their clients.
Maybe the pressure and goings on in various troll cases and some that have been detrimental ruling wise to the plaintiffs of those cases is having a a shock and awe effect on the trolls. Guess we will see how this plays out in time
“No Voice Please! I don’t want my words mis-quoted!”
Well… there’s a very easy solution to that: recorded, date and time stamped, voice conversations. For additional points, have an appropriate 3rd party present who can witness and lawfully sign off on the conversation exactly as it occurred. Keep a copy of the recording along with the signed witness declaration for your records, give a copy to the 3rd party for their records.
If you are misquoted – provide both the recording and the signed witness declarations to the Court via appropriate filing.
Granted, there can still be a measure of doubt on the authenticity of the recording – but if one side provides what appears to be sound evidence and the other can not provide any evidence to contradict it.
Easy enough to set up something to ensure interactive voice discussions occur without having to be concerned with your words being misused.
I wonder who is getting BCC’d on everything.
Shame that whole privilege thing keeps someone from checking to see if the messages are being copied along and instructions being fed back.
One could add a web bug (a html element that gets loaded from your server when a html styled email is viewed) to your email and look at the your server logs to see the IP address that downloaded the element.
SHHHHHHH don’t give away the plan.
I don’t understand why the subpoena to the ISP is so narrowly defined. I would think if you were actually trying to build a case, you would ask who had the TCP/IP address at this specific time, when did they have it assigned to them, and when did it become unassigned. I would think that would be information that is in the same record the ISP is looking at to get the more narrowly defined information, so it should be easy to get, with little added cost to the plaintiff for the ISP services.
I recall reading one of Malibu Media’s / X-Art’s declarations, perhaps by Collete Fields, that states they dismiss defendants that had an open wireless router.
Funny how Plaintiff’s attorney profiled ISP subscriber; likely under 35 yrs old, interested in high-end amateur photography and possibly works or is studying in/for the healthcare industry. Sure thing, and it must be highly likely that IPS subscriber has a penis. And defendant’s attorney says sorry you are not in the ballpark. The Plaintiff’s attorney is constantly using the most bizarre Sherlock Holmes feats of deductive logic and pure wizardry to determine who owes them tens of thousands of dollars, including their rent-a-drop mail box foreign investigators. This leads one to figure they are all hat and no cattle. Where is the evidence? Where are the investigators?
They are so confident and then go into hiding as soon as discovery commences. The Federal Judges need to wake up to this broken record that has been played for the past few years.
I’m guessing that the conversation is e-mail only because the conversation is with IPP/Guardley in Deutchland, Local counsels are a necessary, but undesirable, cog in the IPP machine. They are likely not very conversant in the subject matter, just conversant in easy cash.
Two possible reasons for requesting e-mail exchange only.
First, reduce ambiguity – avoiding the phone also avoids the whole ‘he said — he said’ thing. Understandable, I’ve done that myself a time or three, in the interest of perpetuating evidence and gently pointing up to the other party that their choices could come with consequences.
Second, it could be intended as a … convenient excuse, on the lines of ‘the dog ate my homework’. The use of e-mail is a good way of … hiding whether information was received or sent by either the right party or at all, by adding a layer of complexity to the communication process. Witness, e.g., the kerfuffle over Lois Lerner’s e-mails.
Given the parties…I tend to think the latter is the more correct description of what’s going on.
I think the most likely explanation, is even if Yousef did the actually typing of the email he has no authority to actually make a decision, so he can’t talk on the phone since he can’t check in with Germany.
Wrong caption on the picture..the words coming out of that phone at a whisper, with a ghoulish laugh, are “Oral Contingency Agreement”. It’s not fear of the phone, it’s being ordered not to talk (opinion only). If I were Guardaley, I would order Yousef not to talk, and, if Yousef was smart enough to know to withdraw, I’d do some fast talking to delay that motion.
The Breaking Glass v. Does Report and Recommendation excoriating Yousef which is quoted at page 4 of Sweet’s motion to quash. A delightful read 🙂 http://www.archive.org/download/gov.uscourts.ohnd.199638/gov.uscourts.ohnd.199638.10.0.pdf
That is a fun read. Oh, that all the courts would respond in such a manner. Of course much of their concern was those were mass doe cases, while this is a single doe case. Still the point remains that if the doe is represented and has an attorney willing to accept service there is no reason that MM & Yousef needs any other information about them at this time.
The magic question: How many times must a Judge caution a Lawyer on making deliberate misrepresentations?
http://madisonrecord.com/news/s-3167-federal-court/266259-judge-to-prenda-attorney-mr-duffy-this-is-not-a-game
Thanks for the link. Interesting read.
I think most of you are missing the point of the no phone call policy. Cost. It’s quicker and cheaper to only reply via email. Short and simple emails require less time and higher margins.
Emails – less interactive, much less informative with regards verbal tone cues – can also lead to misunderstandings, much like any other communication tool. If a misunderstanding that could have been avoided by direct voice ends up costing Faroniya damages that could have been avoided – such as $11,000 in sanctions – is it still better for the bottom line? How much did he really save by forcing emails and not talking on the phone compared with the potential costs of sanctions (should he earn them)?
Given the nature of his job – I’d imagine misunderstandings would normally want to be avoided.
There’s many more points I could make on your concept of “short and simple” emails – such as the fact that your email might be going to someone who does not share your knowledge and so requires more information then a short, simple email would provide.
But I think the mention of potential sanctions is sufficient to have you consider that any rule that might be applied to the bottom line could just as easily inversely affect said line if applied without exceptions. There’s a reason humans have developed dozens of tools for communications. And, of course, I refer to the non-physical tools such as metaphores as well as the physical.
If there was one perfect tool for communication – we wouldn’t need the rest.
Well… would you look at that… your short and simple message lead to a much larger message of other factors to be considered when one decides on whether or not “one should only communicate by email”.
Back to the bottom line: sometimes the short term savings are much more costly in the long run.
LOL…You have to love Jason Sweet. smart, articulate and not afraid to throw a zinger in now and again. And let’s be honest Malibu get’s no where without their subscriber information, and they know it.
This is why Lipscomb is grovelling to the court in my opinion to hope the Judge will let them have it, hard to pressure for a settlement with out it. Sweet has a valid point about effecting service on himself and that it should not be an issue.
Malibu and associated trolls don’t like the idea and don’t want to allow this to happen because they FEAR it will start a domino effect and other defendants attorneys will do this as well and further thwart the trolls extortion -er- I mean settlement program and the dash for the easy cash.
I can’t see the Judge denying Sweet to allow acceptance of service thru himself from the Trolls, Lipscomb filing sure inst anything worthy of denying Sweet the acceptance on behalf of his client in my opinion