Guardaley | X-Art

David v. Goliath: pro se defendant prevails over copyright shakedown cartel

It all boils down to evidence. If there is no evidence whatsoever, an attentive and diligent judge won’t allow a case assigned to him to linger – he will rule summarily in defendant’s favor. That’s exactly what happened today. An experienced cardsharper Malibu Media (M. Keith Lipscomb) didn’t convince the judge that the proof of infringement (or, more precisely, the lack thereof) elevates to a necessary level of controversy that requires a jury trial.

The most hilarious part is that the defendant wasn’t even represented — he fought pro se instead. This tells volumes about the quality of Malibu’s “investigation” and “proof.” What we witness is a bluff on a massive scale, nothing more.

This is a relatively new case, filed by a copyright troll Christopher Fiore (or to be precise, by the Miami’s troll center using Fiore’s ECF login) on 2/28/2014 — Malibu Media v. John Doe (PAED 14-cv-01280). The defendant decided to fight rather than to pay up: on 4/3 he filed a motion to dismiss the action and quash the subpoena, which was denied on 5/19. As it happens in these shakedown cases, trolls obtained the Doe’s identity and started pressuring him to settle outside of the court: well-oiled extortion machinery in action, nothing new.

The Rule 4(m)’s 120-day time window to serve the defendant was about to expire three weeks after Comcast sold out its customer’s identity to the troll, so on the last day (6/30/2014) the troll moved for an extension in order to have more time to apply pressure. That extension was granted on 7/9, setting 7/30 as a new service deadline. Business as usual: the majority of judges rubber-stamp those extension motions without reading, and they do it again and again.

Not this time. Judge Stewart Dalzell, presented with the extension request for the second time (which Judge Restrepo from the same district would consider as a mere beginning of the long and happy journey), actually questioned the validity of the delay. And he wasn’t happy:

(m) We find that Malibu’s failure to serve within the time we specified was not reasonable because it knew the defendant’s identity for three weeks before the expiration of the Rule 4(m) period and offers no reason for its failure to serve him, and accordingly we find that Malibu has not shown good cause;

(n) However, we will exercise our discretion under McCurdy and grant Malibu a last extension to August 11, 2014 to serve the defendant, after which this matter will be dismissed without prejudice;

So the defendant was served, and he answered the complaint on 9/2/2014, denying any wrongdoing.

Because of this judge’s intolerance to frivolous delays, this case progressed rather quickly: the defendant submitted his hard drives to Malibu’s “expert” Patrick Paige, who searched and… found nothing. Well, he found some evidence of Bittorent activity from 2010 and a file with the name “Angelica – Good Night Kiss,” which is the name of one of XArt’s hardcore porn flicks. Paige didn’t specify that this file contained the entire movie or even a part. Do you believe that if it was the case, the trolls wouldn’t shout about it? Me neither. This file certainly wasn’t a media file (or a piece) — as the defendant explained later, it might have been a Google cache of a search resulted from a research after the defendant was hit with the lawsuit.

Also, there was an evidence of USB drives connected to defendant’s computers, and those drives were not offered for inspection. Of course the trolls cried “spoliation!” This hysterical accusation didn’t have any effect on the judge, as we will soon see. The defendant himself didn’t oppose to supplying the portable drives — he didn’t think that he did something wrong at all: initially he was only asked for hard drives. He even offered the USB drives for inspection later.

So, having nothing in their hands, the trolls proceeded to pound the proverbial table — they subpoenaed Comcast for the defendant’s data usage and possible DMCA notices. Such request is essentially an admission of the king’s nakedness: the only reason for requests like this is to continue the pressure in a hope that a troll’s victim will break down and pay the ransom. This is not a new strategy.

Scroll down, and you will see that the judge was not impressed either by the spoliation claims, or by the “circumstantial evidence” (an unethical tactic, for which Malibu was sanctioned in the past):

That Malibu Media chose not to ask for the missing storage devices after their existence became evident to its expert in no way bolsters its hollow claim. Nor are we impressed by the histrionics over alleged spoliation. Malibu Media, as the party seeking a spoliation sanction, bears the burden of proving there has been spoliation. […] Malibu Media makes much of what it called “additional evidence,” that is, indications that Doe used his computer to infringe others’ works between 2005 and 2010 — well before the period at issue in this case — and then sought to scrub the traces. Such efforts do nothing to establish Malibu Media’s claim as to its copyrighted works. It is well-established that the statute of limitations to bring claims under the Copyright Act is three years. 18 U.S.C. § 507(b). Therefore, the use and ownership of Doe’s computers before 2011 are irrelevant here as a matter of law. […]

On 12/16/2014 the defendant was deposed; he stayed strong and maintained his innocence.

So, finally, both Malibu and the defendant filed the motions for summary judgment (both under seal), and today Judge Dalzell granted the defendant’s one, denied the plaintiff’s. The Memorandum and Opinion is beautiful in its detailed debunking of plaintiff’s grossly unsubstantiated claims:

[…] Malibu Media cannot prevail here because it does not identify any evidence upon which a jury could reasonably find for it. Malibu Media has failed to raise a genuine issue of material fact as to its copyright claims. As is well-established, a fact is “material” if it “might affect the outcome of the suit under the governing law.” […] None of plaintiff’s responses in opposition is material in the absence of evidence that Doe downloaded or distributed any copyrighted Malibu Media works-a complete failure of proof concerning the essential element of its claim. Malibu Media has failed to show that there is a genuine issue for trial.

Plaintiff’s efforts to shift its burden of proof onto the defendant are unavailing. However troubling Doe’s evasive and shifting answers may be, none animate “disputes over facts that might affect the outcome of the suit” that would preclude summary judgment. […] We will therefore grant Doe’s pro se motion for summary judgment.


Judge shopping?

I decided to look at the other Malibu cases assigned to Judge Dalzell that were dismissed on July 2014 and later. It turned out that all the cases assigned to this judge are currently closed, and only two from the list were settled, the other defendants are apparently dismissed solely because the cases were assigned to an “inconvenient” judge: I have an impression that the coward trolls ran from this judge at the first opportunity. In my opinion, this is a blatant judge shopping. Correct me if I’m wrong:

  • 14-cv-02478 (4/29/2014)
    • 7/15/2014: The judge grants the second motion for extension of time, setting 8/29/14 as a deadline.
    • 7/17/2014: Ten days later Malibu dismisses the defendant without prejudice.
  • 14-cv-01659 (3/20/2014)
    • 7/11/2014: The judge grants the second motion for extension of time, setting 8/15/14 as a deadline.
    • 7/17/2014: Six days later Malibu dismisses the defendant without prejudice.
  • 14-cv-01978 (4/3/2014)
    • 8/01/2014: The judge grants the second motion for extension of time, setting 8/27/2014 as a deadline.
    • 8/27/2014: On the deadline Malibu files the third motion for extension of time, but without waiting for the order, two days later (on 8/29/2014) dismisses the defendant without prejudice.
  • 14-cv-02762 (5/14/14)
    • 7/15/2014: The judge grants the second motion for extension of time, setting 8/29/14 as a deadline.
    • 8/28/2014: One day before the deadline Malibu dismisses the defendant without prejudice.
  • 14-cv-02471 (4/29/2014)
    • 7/10/2014: Malibu moves for ex-parte discovery, which is apparently granted (the order granding discovery, Doc. 5 is missing from Pacer).
    • 9/19/2014: The defendant settles with Malibu, dismissed with prejudice.
  • 14-cv-02537 (4/30/2014)
    • 8/01/2014: The judge allows ex-parte discovery, ordering the service to be effectuated by 9/13/2014.
    • 9/15/2014: Two days after the deadline Malibu dismisses the defendant without prejudice.
  • 14-cv-03803 (6/19/2014)
    • 7/17/2014: The judge allows ex-parte discovery, ordering the service to be done by 10/17/2014.
    • 9/19/2014: The defendant settles with Malibu, dismissed with prejudice.
  • 14-cv-05122 (9/05/2014)
    • 1/7/2015: The judge denies the motion for extension of time, closing the case.
    • 1/9/2015: Two days later Malibu (unneccesarily) dismisses the defendant (probably because of the mess in the trolls’ backoffice).

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12 responses to ‘David v. Goliath: pro se defendant prevails over copyright shakedown cartel

  1. Great Memorandum by an insightful and well reasoned judge. I particularly liked this gem which I hope to see often quoted in the future:

    “We find unsettling the gulf between Malibu Media’s claims in this summary judgment motion and the actual evidence — or, more to the point, the lack thereof — its expert unearthed after extensive searches. And we find merit in the skepticism with which other district courts have greeted Malibu Media’s discovery motions and subpoena requests in similar matters.”

  2. I can’t help mentioning Jordan Rushie’s opinion on Lipscomb’s evidence:

    Apparently, a pro se can beat you on your professional field, Jordan. Or did you cheat and played for both sides? Whichever is true, you are a loser.

    • When there is no cross examination and no defense…. it really is just a dog & pony show, not a trial. Lipscomb put on a show and no one question is any of it was true.

  3. SJD and others….

    Please take notice of the Courts statement on Standards of Review, part 2, “substantial similarity” (top of page 5). The entire discussion is what constitutes substantial similarity being a “fact issue for jury resolution because the fact-finder may need to compare two works…” and that “a court may determine non-infringement……when no reasonable jury , properly instructed, could find that the two works are substantially similar.”

    Now fast-forward to page 13 and the Courts statements in paragraph 2. “As to the snippet of ‘Good Night Kiss’, whether it is a preview , as the name indicates, or merely a word file, as Doe suggests, is immaterial: It is not a copy of the work itself. Our Court of Appeals ‘substantial similarity’ test obliges us to determine……. . Here we determine as a matter of law that there was no improper appropriation because no reasonable jury, properly instructed, could find that the snippet bears a ‘substantial similarity’ to Malibu Media’s copyrighted work. We conclude that, even if Doe copied the preview, his copying would not be an improper appropriation violating Malibu Media’s copyright of the entire film.”


    Does this not give HUGE credibility and a verifiable Court opinion to any argument that the mere few small incomprehensible bits on BitTorrent (if we can even trust the Trolls co-conspirators so-called work) is not a copyright violation ?

    Does it not mean that what these scummy shit-eating Trolls are basing their extortionate filings on, are in fact NOT violations of copyright ?!?

    Doesn’t this essentially mean that unless a full work is found to come from a single IP address (and yes I realize the IP address thing is a legally baseless, bullshit argument the Trolls use) that no copyright claim would be held valid ?!? “Substantially Similar” is not a few bits/bytes, an electronic IP handshake, nor just an extremely small part of a full work like would come from a single BitTorrent user in a “swarm”.

    Sure seems that way to me, at least in this Court’s District. Seems like yet another point for a smart defense lawyer (or pro se !!) to utilize in a court filing.

    • While an interesting point, I kind of doubt courts would go that far with it. For one thing, I could see a court finding bit torrent chunks from a seeder reasonable. If a seeder is offering a file with an given hash, you already have a copy of the file matching that hash, downloading a few chunks that match the file you already have is pretty reasonable evidence that they have a copy of the whole file they claim they’re offering for download. Especially as while it’s been a while since I paid much attention to the underlying technology, I’m fairly sure most bit torrent clients have provisions in place to prevent people from using a corrupted copy of a file as a seed.

      The catch for trolls is that the troll business model relies on going after downloaders in general, not seeders. People who configure their clients to only leech rather than seed after completion will be more difficult to go after. The flip side of that is that the very nature of bit torrent makes it difficult to get a file entirely from one person in the swarm, and to the layman it will make a lot of sense so say “They were uploading parts of the file, they were last seen with their own download of the file 99% complete, therefore they downloaded the file”.

      In short, while it can present some additional hurdles in this area, I wouldn’t expect miracles.

      The more important aspect of the judge’s point IMO, is that this could make it more difficult to go after excerpts of a work. For example, if someone takes a porno flick, chops it up into just the sex scenes, and offers them separately for download, it could be more difficult for the troll to go after someone who merely downloaded one of the scenes.

      It also could curtail the ability of trolls to use .torrent files as evidence that a victim had had a copy of a movie on their computer. .torrent files are not a copy of the actual works, and it’s entirely possible to have a .torrent file for a work on your computer, that you never actually started downloading for one reason or another.

      In short, I’d say people would have better luck using this to curtail some of the more absurd attempts at circumstantial evidence, or claim spoliation simply because they didn’t find the work in question. It may be of some use for snippets and partial downloads. But flat out getting the trolls’ preferred method of finding people tossed as being deficient is a long shot.

  4. I hardly find it a coincidence these were dismissed by the trolls. The risk if these cases all ended up as a loss especially with the Judge’s finding in his order for the pro’se defendant would have had quite the rebounding effect which the trolls would be desperately trying to avoid in my opinion.

    Lord knows the trolls sure wouldn’t want defendants or their counsel to bring this ruling to the attention of other Judges in other jurisdictions where Malibu has cases filed. While I am sure the trolls were having a fit that they had to spend money on filing fees with no cash coming in from extor – er- settlements in these dismissed cases it will be interesting to see how the trolls move forward after this.

    I would suffice to guess they will think twice about filing further cases in this district out of concern that defendants or their counsel will point to Judge Dalzell’s ruling even if Malibu drew another Judge over seeing the case. One would have to believe the trolls would be worried about being on the losing end of the stick again.

    I don’t know If would call it judge shopping , I would term it more scared shitless that the odds were against them because of Judge Dalzell ruling, and that they decided to cut and run rather then have a bunch of adverse rulings that others defendant’s could point to.

    It’s nice to see some Judge come to their senses and realize what the trolls are doing and deciding to not let the trolls totally game their courtroom.

    Nothing warms my heart more than the trolls having to slink away with less money than when they filed these cases. The losses are starting to pile up, I remember when that happened to the Prenda gang, and it kept snow balling from their and they aren’t done mounting yet.

    Karma is a funny thing, you never know when it is coming back around your way.

  5. It is a shame that there is not some way for the Pro Se defendant to recover the cost of the time they have to spend on a case like this. While it thrills me that he won and that the ruling is public so that others can point to it, out of the mentioned cases there were two people who settled which means even with all the dismissals, I predict the Trolls didn’t lose money. They certainly didn’t make as much as they were planning, be to shut them down we need them to start losing big chunks of $$$.

    • In theory, a pro se can recover the fees, and there is a case law that supports it, but that’s in theory: 1: I never heard about fees awarded to a pro se defendant in copyright cases, and 2: Lipscomb and gang will scramble all their firepower to avoid such a bad precedent. It won’t be a fair playing field.

      Yet based on the judge’s attitude toward the plaintiff, I’d recommend this Doe to talk to attorneys who could try recover the fees on contingency. I’m just speculating, never heard about such an arrangement, but I’m not a lawyer. I’d definitely probe the possibilities.

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