Guardaley | X-Art

Malibu Media blackmail: deep in the Prenda territory

A couple of months ago I wrote about an interesting development in Michigan (Malibu Media v. Gerald Shekoski, MIED 13-cv-12217). When it came to discovery, the defendant’s attorneys, Derek W. Wilczynski and Lincoln G. Herweyer, were reasonably distrustful to the prospect of porn trolls rampaging through the defendant’s hard drive, accessing sensitive information and other files that have nothing to do with the plaintiff’s pornography.

Defendant would have to essentially trust [Malibu]. Yet, pornographers with an industry-sized litigation practice of coercing settlements from blameless individuals do not instill the confidence necessary to such trust.

Mr. Wilczynski wanted to engage a local independent expert to avoid a fishing expedition that would result in blackmail based on findings of possible unrelated wrongdoings.

As we will shortly see, the defense’s fears were all but unfounded.

Blackmail

While Judge Victoria Roberts didn’t agree to an independent expertise, she was apparently wary of the defense’s concerns and wrote a compromise order. Although she ordered that the hard drive examination would still be performed by Malibu’s own expert Patrick Paige, she set very strict safeguards:

If the examination does not reveal evidence of the copyright infringement alleged in the complaint, and if there is no evidence that infringing files have been deleted, Malibu Media will dismiss its claims against the Defendant. Malibu Media must report the results of the forensic examination immediately to counsel for the Defendant.

The order was issued on 7/21/2014, and it seems that the drive examination was performed shortly after that. Apparently, neither XArt’s smut nor evidence of spoliation was found. Nonetheless, in violation of a clear language of the order, plaintiff’s lawyers not only didn’t dismiss the case, but were concealing the results from the defense for more than a month:

On September 11, 2014, Plaintiff’s counsel, by omission, made Defendant’s counsel aware that the forensic examination of Defendant’s hard drive had not revealed evidence of the copyright infringement alleged in the complaint, and had not revealed any evidence that the infringing files had been deleted. However, instead of directly confessing the same, Plaintiff’s counsel stated that Plaintiff’s expert had found evidence of unrelated possible copyright infringement of a completely different than that at issue in this case.

Here is the defendant’s motion (for permission to file motion to dismiss and/or to dismiss with liability for attorneys’ fees):

 

As we read through, we can see that our trolls started a nauseous blackmail campaign despite the absence of any evidence that XArt’s smut was ever located on the defendant’s hard drive. Here is Nicoletti’s email threatening the defendant with sanctions, offering a walk-away with unacceptable terms:

 

NicolettiPorn troll Paul Nicoletti

What did the trolls try to leverage? Apparently the fact that the defendant’s daughter used to share music using popular free peer-to-peer software LimeWire, which took place… 5 years ago, when she was a minor. In addition, Nicoletti/Lipscomb claim that the defendant lied when answering an interrogatory about his knowledge of this fact.

First of all, Mr. Nicoletti, let me educate you, an ostensive IP attorney: the statute of limitation for copyright infringement is three years.

Secondly, as for the false statements (of not knowing that a file-sharing software was installed), the threats are beyond douchy as they suggest that the defendant should have actively policed his daughter’s computer usage.

Thirdly, the fact of buying a new computer as an evidence of wrongdoing is not even a stretch, it’s a fiction.

And finally, I challenge you to find a then-teen who either didn’t use LimeWire or didn’t know someone who did: not only it was extremely popular, it was perceived legal by the majority of its users before it was shut down by the music industry in 2010. We don’t have to dig too deep to find a good example of an innocent infringement of this sort: plaintiff’s co-owner Colette Field publicly acknowledged pirating music using a similar peer-to-peer system Napster in the past.

You know when I was 19 years old I used to download from Napster and I didn’t even know it was wrong. And then I saw some lady getting sued for $30k and I realized what I was doing was illegal and I stopped. I joined itunes, I pay for my music, I pay for Sirius. Why should people not pay for what we spend most of our time and money making. I want to get out the message that I learned about Napster, can you understand that? Thank you for reading. ~ Colette from X-Art

So, why not to blackmail your own plaintiff, Mr. Lipscomb? Obviously, she is quite capable of paying — despite her laments about evil pirates destroying her business, XArt reportedly declared more than five million dollar revenue on its 2013 tax return.

Where are you, Mr. Lutz Paige?

Basically, Lipscomb/Nicoletti/Paige violated every paragraph of the 7/21 court order.

The judge was not happy, and after a short telephone conference on 9/16/2014, she gave our trolls one more chance (or a rope?) to do what the previous order unambiguously said:

Patrick Paige must supplement his affidavit by September 23, 2014. The affidavit must answer the questions: (1) Did Mr. Paige find evidence of copyright infringement as alleged in the Complaint? (2) Did Mr. Paige find evidence of deletion of infringing files?

On 9/23 however, Malibu filed a motion for extension of time for one day, claiming that

2. Because of a clerical calendaring error, Plaintiff did not notice the deadline until after business hours, which made it impossible to secure the supplement from Patrick Paige.

3. As such, Plaintiff requests one (1) additional day for Patrick Paige to supplement his affidavit.

Well, no matter how phony this excuse sounded, the judge granted a one-day extension, as asked: no more, no less. Since then — silence. At the time of the writing, i.e. four days after the extended deadline, no affidavit can be found on the docket. I bet that the crafty young lawyers at the 2 South Biscayne Drive are still restlessly brainstorming a graceful exit from this Prenda-like situation.

I can’t help drawing a parallel with the games Prenda played in the Minnesota and California courts when the purported boss of bogus corporations Mark Lutz was ordered but failed to appear in judges’ courtrooms.


This is not the first time when Lipscomb & Co threatens an obviously innocent person. One of the most egregious examples is Malibu Media v. Pelizzo, a case that is currently on appeal.

Given the Kafkaesque disconnect between actual and statutory damages in the Copyright Law and the general hostility of the judicial process to an individual, it is quite disgusting when trolls twist defendants’ hands even based on more or less plausible proof of wrongdoing. It is way more troublesome when porn trolls behave as Mafia and attempt to extort money from people who haven’t wronged the plaintiff in any way.

Followup

11/17/2014

Updates

10/6/2014

Today we finally heard from the court. Judge Roberts issued an order granting defense’s request to file a motion to dismiss and for fees (reminder: the judge put a moratorium on motions, and the motion featured above was technically a request to leave to file a motion to dismiss). She also set the reply-response schedule:

1. Plaintiff’s Motion to Dismiss must be filed by: 10/16/14
2. Defendant’s Response Brief must be filed by: 11/10/14
3. Plaintiff’s Reply Brief must be filed by: 11/20/14

The absence of Paige’s supplement on the docket is puzzling: I guess this issue was discussed during the 10/2 phone conference and the trolls seemingly got away with breaking the judge’s order. This time.

5/15/2015

Half a year has passed since the last filing, and today the judge finally had her say.

It seems to me that directly violating judge’s order and blackmailing the defendant using patently inadmissible, illegally collected evidence is an OK conduct. Today Judge Roberts granted Malibu’s motion to dismiss without prejudice and refused to discuss attorneys’ fees based on the recent motions.

In his opposition to Malibu’s motion to dismiss, the defendant clearly explained why a dismissal without prejudice is a travesty:

Plaintiff wants the dismissal to be “without prejudice” so that Defendant will not be deemed a “prevailing party” who would be entitled to recover costs and attorneys’ fees pursuant to 17 U.S.C. § 505. For the reasons set forth with more particularity in the accompanying brief, Defendant asks that this Court dismiss this action “with prejudice.”

In other words, the troll lured an innocent man to an expensive restaurant, stuffed his troll stomach and (with judge’s blessing) escaped via the backdoor, leaving the defendant with an unpaid bill.

Recent developments in Malibu Media v. Roldan and the appellate decision in Malibu Media v. Pelizzo are extremely alarming. If filing shakedown lawsuits has only upside for the troll, and no downside whatsoever, expect the current judicial plague only to worsen.

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Discussion

35 responses to ‘Malibu Media blackmail: deep in the Prenda territory

  1. This enterprise has absolutely no qualms about demanding attorneys fees left and right. However, whenever it becomes clear that they, as a matter of common decency, should reimburse an innocent accused, the knives come out. It is both saddening and revolting.

    • Not to worry I am sure Maurice is speeding thru school zones and the odd red light to come here and stave of the vicious and savage attacks against the High Class purveyors of Smut like Colllette & Brigham.

      I know it brings a tear to Maurice’s eye to know that Collette and Brigham are scraping to get by in their $16 mill mansion while they fight to save their business from the copyright inf ringers of the world who are pillaging poor Colette and Brigham’s bank account.

      Son as someone flashes the $ money sign symbol in the sky the trolls should come out to defend these purveyors of the finest smut that 9.95 can buy. Maurice will no doubt share one of his invigorating tales of how Colletter and Brigham are single handily taking on copyright rule breakers to save Porn and take a stand against copyright infringment. Heroes really.

  2. This clearly shows that they don’t care about evidence. They just want money. I wonder if the judge will apply sanctions for violating court order. They could have flipped the bird at the judge and shown more respect. The plaintiff lawyers sure seem to have similar lack of respect for the law. Perhaps this is what is required to do this kind of work? Suing people across the nation on the flimsiest of evidence. Knowing full well, they will be going after many innocent people, yet demanding they pay if when proven innocent. .

  3. Deny, Deflect Delay. I never knew that Malibu and it’s associated trolls were such big fans the Prenda gang that they follow one of their true strategies when their was trouble on the horizon I guess when their is trouble looking your way you employ all sorts of different methods to get out, but looks like Malibu and local trolls love Prenda’s Deny, Deflect, Delay tactic.

    In my opinion they should have dropped this and walked when the Judge narrowed down the terms of the discovery and how it would be dealt with and where the discovery would be limited to in the computer search for infringement.

    So instead of using the opportunity then to try and get out, the trolls still clung to the hope that they would find something to still be able to squeeze some cash out of this, it is also why in my opinion that innocent people are dismissed statement is all just bullshit, this case pretty much furthers up that very point if you ask me.

    The fact that the Judge narrowed the questions and what the finding could say and what they were based on is telling itself in my opinion. It would seem from my take on this that the Judge must have looked at the filings and the defense concerns with Malibu/ Trolls desire to go on a fishing expedition and had some serious concerns with the avenue Malibu was pressing to be bale to take and thought that was overly broad and more than out of the scope of what would be fair.

    With that said I would be of the thought that Malibu/Trolls various and escalating ideas and wants at what it can look at and how seem to be more of a tactic to pressure the defendant to settle. Honestly the methods are no better than what you would see with some back room collection agency employee who tells you all the way they will get you and could ruin you if you dont pony up now , now, now..

    Paige’s original report back is what we usually see in any case where they examine the computer., there is evidence of other infringement, we didn’t get all the media connected to this computer, the defendant lied, they destroyed hid evidence, bla bla bla… You’d swear like the original complaint filing, the computer examination discovery finding report are boilerplate as well ( my opinion of course )

    Let’s hypothesize for a minute here; If these reports are boilerplate with just the odd variation
    of files and torrent name etc etc thrown in, it would explain why they are having an issue of producing a report that answered the Judges narrowed down questions of what she asked to see the answers based on the examination.

    Nicoletti’s “generous” walk away deal is almost laughable in my opinion. This is nothing more than Malibu and troll trying in desperation to save face and come with anything to wave as a victory. While it would give the defense what they should have got from the beginning, I would hope they reject it outright for what it is a desperate and last ditch effort to save face.

    As for Nicoletti’s claim that they will change and add in the discovery of the limewire torrent software and the 35 files…Please…desperation be the name. There is no way in the world that this Judge , who already narrowed down the scope of the discovery, is going to allow something in that went beyond that scope of her original order ( Paul when you get back from Fantasy Island stop in and tells us how your vacation was )

    Nicoletti’s additional addendum of no more downloading of Malibu’s works or a 15 k penalty would apply is beyond preposterous it’s outrageous and just smacks of desperation to achieve some kind of a victory to show to our little German friends.

    I would hope the defendants counsel just sends Nicoletti back of picture of them all around the conference table laughing hysterically as answer to that one. Really just shows you that any win they can achieve is what they are looking for, it isn’t anything to do with the fact or law, just plain ego in my opinion.

    If Nicoletti actually has the balls to file what he claims that they found in their discovery and amend the complaint, it ought to really impress the court at Malibu and trolls inability to follow the courts directive and ought to be an indication at how this is a lawsuit gone awry without and respect for the rules of court and how the court is witnessing a bad faith effort from Malibu and Trolls in my opinion. I
    I’d love to see Nicoletti file that, but I doubt this will happen or it will set the trolls and Malibu up for a bigger hurt than what already could be coming down

    It will be interesting to see how and what are German friends tell them to do and I await this Judge’s decision.

  4. Colette has been telling the press that she had instructed her attorneys not to sue any “students” or “members of the military.

    Now, look at the Nicoletti’s threat to do just that: name a Michigan State student in an amended complaint.

    • I guess they found a way to get even more time to work out a story. It will be interesting to see if the defense mentions Nicoletti’s ” Generous ” offer letter to the Judge. Dang, now we have to wait and see how this is going to play.

      • They don’t need to mention it, they included it as an exhibit to their motion requesting permission to file a motion. (Doesn’t that sound weird). In theory the Judge should have already read it.

    • Since the purpose of this status conference is to give the parties time to work out the details of a dismissal, I hope the defendant doesn’t take anything with a confidentiality clause in it.

      • But, but how can Nicolettti & Malibu keep the IHG from knowing they got their asses handed to them without a confidentiality clause

  5. Personally, I think that they should be sanctioned really heavily for contempt of court (case thrown out with prejudice, costs awarded to defendant plus triple damages and separate sanctions for their breach of privacy and an order to destroy all data under threat of additional penalties). It’s clear as a day that they were just feeding the judge bullshit in order to get material they will then use for blackmail out of court. And they could not even bother keeping up the pretense once they got what they were bullshitting the judge for.

    If that is not contempt of court, I don’t know what is.

    • Hard to imagine how:
      1) finding copyright protected works in the posession of someone
      2) that do not belong to you
      3) and that you have no idea what kind of licenseing might be in play
      4) or other legitamit means wherein the party acquired the work lawfully (gpl protected works for example)
      5) and yet you threaten to initiate a lawsuit for copyright infringement over those works
      6) knowing full well that only a person with one of the lawful copyright works can bring such a suit

      Hard to imagine how all of that, when put together, does not constitute a serious issue with the Legal Bar among other things.

      Of course, “you” is refering to Nicoletti.

      Mr. Nicoletti: If it’s true you’re actually threatening over copyright rights that you do not represent … well… a non-Lawyer like me shouldn’t have to point to Title 17, Chapter 5, Section 501(b):

      “The legal or beneficial owner of an exclusive right under a copyright is entitled, subject to the requirements of section 411, to institute an action for any infringement of that particular right committed while he or she is the owner of it.”

      You might want to think about that and be absolutely sure you really do represent the copyright owner of any work you are threatening over. Otherwise, you may find yourself in the same position as Steele and company: being found guilty of committing a fraud upon the court.

      • Not trying to defend Nicholetti, just trying to keep the bad things he’s done straight. I don’t believe he threatened to sue over the old music. He threatened to add additional MM things downloaded from the IP after the original report they used to file. Of course they didn’t find any of those files on the computer either.

        He did threaten to add the daughter who downloaded the music to the case, because obviously someone who downloaded teeny bopper music over 4 years ago would want to download MM porn now.

        Nicholetti may be scum, but not for threatening to sue for the music.

        • That’s why I said “If it’s true you’re actually threatening over copyright rights that you do not represent”. Nice little “if” starting that sentence. Means there’s insufficient evidence present for me to form my own opinion he’s actually doing that.

          We don’t have much to go on. Nicoletti’s email doesn’t say much, doesn’t even mention music at all. So all we have to go by is the filing for the defendant which includes:

          “5. More particularly, Plaintiff’s counsel intimated that Amber Shekoski– who lived with Defendant when she was a minor, but who now lives on her own near Lansing– had previously usedDefendant’s computer to engage in peer-to-peer file sharing using a now outdated software known as LimeWire. It was not the software allegedly used to download Plaintiff’s pornography (i.e.,BitTorrent), the files allegedly downloaded were not Plaintiff’s works (they were music files), andPlaintiff cannot even establish that the file sharing was illegal.”

          Meanwhile Nicoletti’s email says “Plaintiff will also add the additional infringements (bringing the total to 36 infringed works).” However, there’s no clear indication on what that list of works is or what has been added in the tiny window we can currently see.

          So he may, at this time, actually be using the music files to try and add pressure to settle.
          if…. may…. words that cast doubt on whether that’s actually happening 😉

          Let’s say the files they did find evidence on included a single file of an xart work. Wouldn’t Nicoletti have spoken up about that during the telephone conference on 9/16/2014? Why risk the increasing ire of the Judge with silence when he could identify they did find 1 work for sure as evidence and the expert report is still a work in progress?

          I think the silence at this point is speaking out about a lot more then Mr. Nicoletti would like it to.

  6. Any possibility (…with a huge dose of encouragement and hope!!…) that the defendant and his lawyer will go for the jugular on this one? Sanctions would be nice, the more severe the better, but should be secondary………the criminal act of extortion, and its doppelganger in civil court, should be pursued and in play here, both from the bench and from the defendant.

    This farce of a case, where they are (even more clearly) now attempting to extort money, and that likely all-important (to them) confidentiality clause, despite proof of no infringement of Lipscums client material by the defendant, should be cause for the judge to go after Lipscum and Nicolleti the same as Wright did with Prenda et al. And the list of offensive and questionable actions by this entire enterprise deserves A LOT of proper judicial attention. Its really way past offensive, and clearly into the realm of likely being a criminal enterprise engaged in extortion and fraud.

    Speaking of extortion and fraud……what does it take to get Federal and/or state prosecutorial involvement in taking action on this apparently RICO-eligible enterprise?? WTF?? Past this one case, this entire collective organization and its proven actions (the foreign litigation/plan/puppetmaster, questionable foreign ‘investigaters’ and unproven/discredited ‘tracking programs’, fraudulent pleadings for identities to extort rather than prosecute with a full hearing on ‘evidence’, honeypots, lack of DMCA action, litigation based on unintelligible bits rather than actually copyrightable material, etc.) should be ripe for any State AG or US Attorney to go after criminally/civilly, including the use of RICO statutes.

    Prenda and ElfMan got, and still are getting, their ass handed to them finally………Lipscum should be next in line, with prosecution and judicial retribution equal to the size of their enterprise/actions.

    Disbarment, prosecution, hard and hurtful sanctions$$$, and jail time, are all long overdue.

    • It is. All the new documents are being recapped as they appear (many thanks to Raul). Apparently the crooks try to cut and run — filed a humongous dozens-of-billable-hours-motion do dismiss without prejudice (to get off the fee hook). THAT how are they scared. I anticipate defense’s crushing reply soon, after which I’ll write an update, and most likely a separate post. Stay tuned.

  7. Hello, I’m a frequent lurker here, but I recently ran across an article I thought worth posting. I operate a Tor exit node (and block torrent traffic), so I try to keep up with these stories. Anyway, the article details the dire straits of the porn industry right now, mostly caused by a tube site company called MindGeek, that further proves just how ludicrous the “fighting piracy” to save their business claims by Malibu are. http://news.nationalpost.com/2014/10/24/how-a-canadian-founded-company-youve-never-heard-of-took-control-of-the-porn-industry/

    I hope the article is somewhat informative anyway.

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