Guardaley | X-Art

Despite an overwhelming proof of innocence, Malibu’s lawyers continue dragging the defendant through a frivolous lawsuit

…a proud look, a lying tongue, and hands that shed innocent blood…
(Proverbs, 6:16-19)
Déjà vu all over again

Remember how copyright troll M. Keith Lipscomb, after finding out beyond any reasonable and unreasonable doubt that a defendant in a Malibu Media Bittorent infringement case is absolutely innocent, threatened to ruin his life nonetheless? Today we witness a painfully similar scenario: after the defendant in Malibu Media v. Roberto Roldan (FLMD 13-cv-03007) filed an alibi-grade proof that he couldn’t have been an infringer, Lipscomb & Co doubled down in a futile attempt to save face and avoid paying attorney fees.

This case was conceived on 11/27/2013. In the complaint, Malibu claimed the infringement of 40 XArt’s hardcore porn flicks¹. After Brighthouse sold its subscriber’ identity to the troll, Lipscomb decided to name not the subscriber, but his son. Why? Because he is a young male and because he liked some popular music and movies on Facebook — the titles that were allegedly shared using the IP address in question. In addition, the LexisNexis’s Accurint database [incorrectly] listed the defendant as a tenant in his parents’ house at the dates the alleged infringement was recorded².

In numerous Bittorent cases defense attorneys and judges questioned the trolls’ practice to cavalierly name subscribers or their family members as defendants without the diligence required by the Rule 11 of the F.R.C.P. I do not debate that in many instances trolls’ assumptions are correct; yet the lack of candor inevitably results in mistakes (just like in this case), and given the sheer amount of the shakedown cases being filed today, this is not an isolated incident.

On 8/15/2014 defendant’s attorney, Cynthia Conlin, filed the answer to the complaint. The answer contained 19 affirmative defenses, all of them strong; the majority of these arguments have been discussed on this site in one form or another. Yet for the purpose of this story I’ll concentrate on the following one:

Defendant has not infringed Plaintiff’s work as alleged in Plaintiff’s complaint, nor has Defendant even attempted to download Plaintiff’s work. Defendant is not the account holder associated with the I.P. address, nor does he live at the address associated with the I.P. address.

We’ll get back to this statement shortly.

The alibi

This case was nearly dormant till January, when the defendant filed a bombshell motion for summary judgment on 1/19/2015, presenting tons of evidence that he couldn’t use his parents’ network at the times the alleged file-sharing was initiated:

 

(Also see the affidavit of Roberto Roldan)

As you can see, the proof of the defendant not being involved in sharing XArt’s smut is overwhelming and conforms not only to the relaxed “preponderance of evidence” civil standard, but to a much more stringent “beyond the reasonable doubt.”

The troll doubles down

So what did Lipscomb do? You’d expect a voluntary dismissal of this unwinnable case with prejudice — in order to acknowledge the mistake and move to shaking down the next victim. Wishful thinking! Just like in Pelizzo, Lipscomb (or, more precisely, his hubris) doubles down and files an opposition where he… accuses the defendant and his counsel of “ambushing” the troll with the proof of innocence:

Plaintiff Did Not Know Defendant Resided in Tampa Until Defendant Produced Discovery Documents — Months After the Lawsuit Commenced

[…]

Plaintiff cannot understand why Defendant would wait so long, and allow a lawsuit to proceed for months, if he was innocent and could have ended it against him nearly a year ago. Defendant must have been aware of Plaintiff’s intention to name him in the lawsuit when Plaintiff tried to serve him at his parents’ house in April.

As I stated above, in his answer the defendant explicitly stated that he did not live at the address, and it was not the only time this information was communicated to the plaintiff. So the statement that “Plaintiff did not know…” is dishonest, to put it mildly.

Also, accusing the defense of a delay is beyond disingenuous: almost every Malibu case is being delayed for months without a valid reasonby the plaintiff.

Seemingly, Lipscomb can’t believe that the “impeccable methodology” employed by the Germans could possibly be prone to false positives:

Indeed, Plaintiff did not pick Defendant out of thin air — there is a link between him and the infringement.

I somewhat agree: these cases are pulled not out of thin air. There is a plenty of more appropriate places — abundantly depicted in the plaintiff’s “works of art” — to pull these cases from.

Protective order game and fishing expedition
Daniel C. ShatzDaniel C. Shatz
(Lipscomb, Eisenberg & Baker)

This is a very eventful case. I’ll mention the latest developments only briefly, otherwise there would be a risk of never finishing this article.

One interesting development is the defense’s intent to depose Malibu’s “experts” in Germany. It is a common belief that these entities (or rather different facades of the same beast — Guardaley) are unreported parties of interest that essentially steer the copyright trolling racket in the US. Since Malibu and other trolls vigorously stonewall any discovery related to the “international men of mystery,” it will be extremely interesting to watch how this initiative progresses.

In his 2/9/2015 motion for protective order (which largely repeats his opposition to the motion for summary judgment discussed above) Lipscomb opposed to this deposition, arguing that it would be overly burdensome: surprise, surprise. Instead, he offered a video deposition, which, as the defense argued later, runs afoul of the Hague conversion and may result in criminal charges against the defendant. Also, the troll opposed the deposition of a Malibu’s representative in Florida. At the same time, the plaintiff insists on continuing its discovery.

The defendant opposed, stating that

Plaintiff seeks to suppress Defendant’s right to conduct discovery while Plaintiff, alone, continues discovery to determine whether Defendant’s allegations are true.

In other words, discovery is not a one way street, and plaintiff’s “burdens” are of its own making:

Plaintiff seems to forget that it is the party who brought this case to the Middle District of Florida. Local Rule 3.04(b) explains in relevant part that it is “the general policy of the Court that a non-resident plaintiff [such as Malibu Media, which is based in California] may reasonably be deposed at least once in this District during the discovery stages of the case.”

Malibu moved forward to depose defendant’s parents, which prompted a motion for protective order filed (jointy with Cynthia Conlin) by Brad Patrick, an attorney specially appearing for them. From this motion we learn that among other overboard attempts, Lipscomb requested copies of all the hard drives in the household — to be examined by its own “expert” Patrick Paige, whose skills were questioned by defendants in past. To the defendant (and to me) this is a blatant fishing expedition:

The request to produce the hard drives is wholly irrelevant to the instant lawsuit, because Defendant — the party being sued — did not use the hard drives during the timeframe of the alleged infringements. Plaintiff seems to forget whom this lawsuit has been filed against and has propounded this request as a fishing expedition.

As I learned, the deposition of the defendant’s parents took place today, I hope that the defense attorneys kept it in a narrow path of its original intent — only to confirm (or question) their son’s story. I heard that this deposition, conducted by a Lipscomb’s associate Daniel Shatz, didn’t play well for the plaintiff. As a result, will Lipscomb dismiss the case? I’m somehow skeptical.

The deposition of Malibu’s corporate lutz representative Brittany Snook is set to take place later this week. Before that there will be a telephone conference on Wednesday, 2/18/2015: I’m sure Lipscomb will try to weasel out of this deposition.

Pursuant the judges’ order, the defendant’s motion for summary judgment will be ruled upon after 3/2/2015. I cross my fingers.

Last, but not least
Evidence, evidence

I recently reported a Malibu case where a Pennsylvania Judge summarily ruled in favor of a pro se defendant, because Malibu failed to convince the judge that it had enough evidence of infringement. On the other side of the country, in Washington, the defendant won attorney fees largely for the same reason: it appeared that the only evidence the plaintiff (Elf-Man) could come up with was a record of transmission of a less than a wink length of the movie. According to case law, to prove the infringement, a plaintiff is required to present evidence that the entire movie (or its substantial part) was shared.

So does Malibu possess a necessary proof? Highly unlikely. Just look at the following answer to one of the defendant’s the interrogatories:

15. Did Defendant download the entire Torrent Files to completion? If your answer is “yes,” please explain any and all facts on which you rely to arrive at that conclusion.

Response to Interrogatory No. 15: The purpose of using the Bit Torrent Protocol is to obtain a complete and useable copy of a computer file. In this case, the files are movies. Plaintiffs evidence indicated that Defendant downloaded multiple movies correlating to different .torrent files. Here, it simply does not make any sense that Defendant would only download pieces of a movie file instead of the whole file. Indeed, doing so would be inconsistent with the purpose of BitTorrent. Defendant is a habitual BitTorrent user and therefore presumably knows how to use it successfully for its intended purpose of obtaining complete files.

No, your eyes don’t lie: “it is true because otherwise it doesn’t make sense.” A great argument, way to present the case to a jury!

It seems to me that the troll’s Achilles’ heel is the scarcity of data collected and stored by the ”investigators,” and in my opinion defense attorneys in similar cases should press hard in this direction.

“We are not suing students”

The defendant in this case is a student who works part-time to sustain his education. A misguided XArt co-owner Colette Field recently told an Indiana newspaper (emphasis is mine):

“We don’t want to ruin someone’s life,” Field asserted. “I do not want to cause anyone financial hardship.”

Unless there are unusual circumstances involved, she said, she does not want students or members of the military to be sued for illegal downloads. She said she also understands some people might not know they’re breaking the law.

No comment necessary.

Update

2/19/2015

Not surprisingly, the 2/17/2015 deposition of the defendant’s parents corroborated the defense’s story: there is no way Roberto (who was frivolously named as a defendant solely because he has a penis) could be involved in sharing XArt’s smut.

Knowing about Lipscomb’s inflated ego (which is apparently contagious: his new associate, a rookie attorney Daniel Shatz, either authored or contributed to the following histrionics), I didn’t have illusions that he would let this case go. Our Tijuana Bible scholar is simply incapable of losing gracefully. So, the trolls did agree to dismiss the defendant, but… in exchange for a chance to shake down his father, who is in his sixties! And, according to the motion embedded below, Lipscomb & Co want to continue this farce relying on the same “evidence” that they had upon the inception of this case, plus some superstitious assumptions that resulted from this week’s deposition.

Just read this crybaby’s motion to substitute the defendant. Oh my God! A professional attorney doesn’t name the opposing counsel in a motion, except for some extreme cases. This missive sounds like a hysterical rant against Cynthia Conlin: I even hear certain notes typical of John Steele’s style (“Court outright denied Conlin’s motion,” “in a bad faith attempt to increase her fees and protract the litigation” etc.).

 

To illustrate the “quality” of the purported evidence, pay attention to the following statement, repeated twice (the emphasis is original):

[Both father and son used] μTorrent BitTorrent client — the identical client used to infringe Plaintiff’s copyrights

This proposition is ridiculous, because μTorrent dominates the Bittorent client market: in 2011 half of Bittorent users preferred this client, and since then the μTorrent market share only grew. It’s like saying that “look, this guy used Microsoft Word — the identical word processor used to write letters that ridicule Plaintiff.”

Alas, the judge denied as moot the defense’s motion to depose the Germans. Tomorrow’s deposition of Malibu’s representative has also been canceled. But the farce continues, and I’m sure we will see more weaselry and douchebaggery from the purported officers of the court.

2/23/2015

Today Cynthia Conlin filed her opposition to the arrogant motion to substitute defendant. In addition to expected arguments, there are some new details. The most damning is the following Lipscomb’s December 2014 claim (emphasis is mine):

With regard to the Tampa residence, Defendant has stated that he is “providing a copy of his 2013 & 2014 Lease. We have yet to receive this production. Please produce same along with any other requested information (e.g., documents reflecting Defendant’s rental payments pursuant to the lease).

The leases were provided to the troll on 7/28/2014. So, Lipscomb, prior to making a false statement, has been sitting on those documents for half a year and did absolutely nothing. The claim that the defendant somehow “ambushed” our poor porn troll is beyond disgusting.

2/26/2015

In an unusual twist, Judge Moody ruled “in the middle”: he allowed adding Roberto Roldan’s father as a defendant (which is a travesty IMO), but the judge didn’t allow the substitution proper: the original defendant was not dismissed — an outcome not exactly desired by the trolls: an easy route of escaping from the inevitable attorney fees was blocked for now.

Cynthia Conlin will continue working on this case with Brad Patrick, and I have a good feeling about it. Unless Lipscomb is a totally irrational nut (and I don’t rule this out), he doesn’t want this case to reach the trial: at this moment it’s a poker game, and the troll’s cards are not as good as he wants everyone to believe.

I hope that the discovery efforts (including the depositions of Malibu and the Germans cleverly dodged by Lipscomb & Co) will be rebooted.

Followup

 


¹ I cursorily went through the titles and quickly found than at least eight flicks were filmed at the owner’s mansion without permit (five of those eight violate the Ventura county barrier protection law).

² It is worth noting that Lipscomb & Co knew or should have known that LexisNexis’s Accurint Database is nothing more than information aggregated from various data brokers and hence it is far from accurate. Indeed, even the Accruint’s own guide document explicitly states that (emphasis is mine):

Due to the nature of the origin of public record information, the public records and commercially available data sources used in reports may contain errors. Source data is sometimes reported or entered inaccurately, processed poorly or incorrectly, and is generally not free from defect. This product or service aggregates and reports data, as provided by the public records and commercially available data sources, and is not the source of the data, nor is it a comprehensive compilation of the data. Before relying on any data, it should be independently verified.

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Discussion

44 responses to ‘Despite an overwhelming proof of innocence, Malibu’s lawyers continue dragging the defendant through a frivolous lawsuit

  1. Huh. That “other things would not make sense” argument is nice. It would make it possible to arrest every person purchasing ammunition for murder. Buy a match? Arson. Walk a road? Burglary. I mean, it’s sort of supportive of the complaint, but as sole “proof” it leaves a lot to imagination.

  2. Poor Keith……

    Lipscomb didn’t know defendant lived elsewhere since his RICO-eligible co-conspirators, and their German puppetmasters, didn’t bother to conduct even a minimal investigation or do other work that any decent and half-way intelligent lawyer would have and should have done. They instead waited until the defendant showed how wrong and poorly drafted and thought-out the allegations were, then have the audacity to whine that they weren’t just handed that info earlier ( ??…as if that would have even mattered )…… ARE YOU F”ING KIDDING ME !!??!! It’s up to the plaintiff to do some work, do an investigation, and try to prove the allegation, not sit back and wait until being handed an extortion “settlement”.

    Incompetence. Stupidity. Yeah…..way to go Lipscomb.

  3. In my opinion the reason the trolls didn’t dismiss this suit is they simply thought they could wring some cash out of either the parents or the sun, if they kept the pressure on and knowing it would run up the defendants legal costs.

    We are starting to see more and more cases like this come to light and the trolls are starting to run into more trouble in their litigation machine. That very fact could be why the trolls are hesitant to dismiss simply because they aren’t making the money they used to and the word is starting to spread with victims starting to scour the net for information about these types of cases and what the litigation is really designed to do.

    Obviously the trolls desperation to get some cash out of this case is more than obvious, and I gather they trolls are a little worried about a Lamberson like boomerang coming there way via costs is a frightening proposition that they are hoping to avoid.

    While I think it is more than loathsome that the trolls say they won’t pursue students, the military and those who are elderly or in hardship, I think we all have seen cases where the trolls was informed of a matter of that nature and yet continued to press on, and that speaks what the real truth is and how it is and always been about getting that cash, truth be damned if you ask me.

    Of course the trolls don’t want Conlin or any other attorney to depose our German friends ( as much as the trolls like to trot out the fact the fact they say they will make the investigators appear in court to testify to their investigation and methods, no problem to back up their results ) we have always seen the trolls fight to not see that happen, all while wanting to continue their discovery unabated.

    I should mention it is nice to see that Malibu has found it’s very own Mark Lutz, let’s just hope she answers questions better than Lutz did, because as we found out Lutz couldn’t do the patomic two step worth a damn, although he did provide plenty of laughs.

    I can only imagine the horror and how traumatized Keith must feel by being ambushed be Conlin with truthful facts according to her client along with bills, reciepts, and school records to prove the son was many miles away from his parents when this downloading was taking place, heaven forbid the truth should get in the way of getting some cash out of folks.

    It will be interesting how the Judge is going to view this, let’s hope as in Lamberson the Judge makes the plaintiff cough up mightily for the expenses the defendants have occurred.

    This will be getting interesting in the next while, sooner or later the trolls are going to have to put up or shut up.

    • I hate to play Devil’s Advocate, but being many miles away does not mean that you cannot have a VPN to your home computer that you can control a home computer and download things using uTorrent or another file sharing program.
      Some people are apparently clueless as to the capabilities of computers today.

      • While it is technically possible to VPN to another location and control a machine there, if someone is smart enough to use VPN technology, they are going to VPN to an anonymizing site, not their parents home. While that is logic and not proof, it makes more sense than they downloaded to completion, because that is the purpose of bit-torrent.

  4. So if I understand it correctly, Lipscomb’s position is that the defendant provided lease agreements to show that he didn’t live at the address in question several months ago. Lipscomb did no further investigation on that matter, even though he has the burden of proof, yet thinks it is unfair surprise when the defendant provides additional evidence with a summary judgement motion.

    Did I miss something there?

  5. Pay attention to a not-so-implicit threat in the Footnote 1 in both Lipscomb’s missives (42 and 44):

    Plaintiff has not attached its additional evidence as an exhibit because it contains some content and titles that may be considered embarrassing. Because Defendant is proceeding under his real name, Plaintiff will avoid filing it until Defendant has the opportunity to determine whether he would like it to remain confidential. Should the Court request to see Plaintiff’s additional evidence at this stage, Plaintiff will submit it under seal, unless the Court orders otherwise.

    Essentially Lipscomb threatens to do exactly what resulted in sanctions in the past. While Malibu doesn’t file the scandalous Exhibit C anymore, its lawyers simply cannot say goodbye to the practice of unsubstantiated threats. As recent as 1/21/204, Ohio Judge Timothy Black called out this predatory practice and sua sponte ordered to strike unrelated and scandalous parts from the complaint (internal references removed):

    Finally, the Court sua sponte raises what appears to be a remnant of one of Plaintiff’s particularly controversial litigation practices. Plaintiff’s complaint makes the seemingly off-hand allegation that IPP International UG logged Defendant’s IP address distributing 2,732 third-party files through BitTorrent. Plaintiff euphemistically describes this as “additional evidence” that Defendant is a persistent BitTorrent user and that “[m]any of the titles to the third party works may also be relevant to proving Defendant is the infringer because they correlate to the Defendant’s hobbies, profession, or other interests.” Plaintiff advises that it has this “additional evidence” on a separate document and gratuitously offers to produce it upon request.

    Plaintiff presumably did not attach this document to its complaint because its lawyers have been sanctioned for the same. This attachment, the sequentially numbered Exhibit C, “consistently includes far more disturbing lewd, unusual and unredacted titles of pornographic films allegedly downloaded by the defendant than those belonging to plaintiff.” Courts concluded that the sole purpose of this exhibit was to “harass and intimidate defendants into early settlements by use of the salacious nature of others’ materials, rather than the merit of its own copyright claims.”

    Although Plaintiff did not attach Exhibit C to its complaint, references to its existence and thinly-veiled threats of its production demonstrate that “these cases are fraught with circumstances that could embarrass the putative defendant should they become public and strongly influence his or her decision to settle even a meritless suit just to make the case go away before being publicly associated with their client’s film.” The alleged infringement of third-party copyrights is “immaterial to the allegations in the complaint.” Further, “the exhibit is merely a list of filenames, and it likely constitutes ‘immaterial, impertinent, or scandalous matter’ that should be stricken from the complaint.”

    • SJD,

      The link you provided to Judge Blacks opinion/ruling above proved very enlightening. The ruling goes through a very lengthy rationale for why the defendant is NOT A PARTY until he/she is actually named. This is also what every EXTORTION TROLL claims strenuously when any ‘Doe’ tries to quash a subpoena and fights the release of Doe personal information from an ISP. Now (yet) another Judge is in agreement. (It might be nice if all Judge’s could see through the EXTORTION TROLLS schemes, but we’re not there……. yet.)

      Doesn’t that right there give all kinds of legal reasoning to a ‘Doe’ who can plausibly claim ignorance of upcoming litigation, and has not been actually named in an EXTORTION TROLLS action (so is NOT A PARTY), to do any and all clean-up or replacement of equipment and drives that might have somehow been used in the future by a Troll to look for disputed material at issue on the Doe’s (now a NAMED PARTY) equipment??

      The ‘Doe’ could ignore and otherwise not acknowledge any notice from an ISP, then do what Doe thinks is prudent and needs to happen while still NOT A PARTY. Then if/when the EXTORTION TROLL filing actually makes the former Doe a NAMED PARTY, the now NAMED PARTY can claim they just did a little electronic house cleaning in the past while NOT A PARTY. The Doe was NOT A PARTY, was unaware of coming court action, so had no legal obligation to preserve any so-called ‘evidence’. No one has any legal obligation to preserve just about anything at any time, and now apparently not until NAMED in an action. They don’t really have any “judicial notice” as they are NOT A PARTY, and can claim ignorance of notice until actually named and properly notified of a lawsuit. (Even plaintiffs actions in this Roldan case give credence to lack of notice, as the EXTORTION TROLL didn’t go on to name the IP account holder — the TROLL could name someone else, so the account holder really isn’t ‘on notice’ when notified by the ISP of a pending potential release of info due to a subpeona.) None of this is a great course of action, but may be necessary for some to fight the EXTORTION TROLL scourge, and apparently is defensible.

      (NOTE: I am just expressing my humble opinion, and reading the Judge’s lengthy reasoning and ruling. I am not advocating or encouraging infringing activity and/or cover up, but am merely pointing out the distinct and possibly legal actions a ‘Doe’ could take that would not be outside the law, especially given this judges reasoning and the Trolls “you’re-a-Doe-and-don’t-count-yet” arguments when confronted with motions to quash. )

      “My hard drive failed and was destroyed”……”I wiped and reformatted and reloaded everything due to a root kit virus”……..”I have always used CCleaner and DriveWiperand other similar widely-used performance-enhancing utilities and just wanted to clean up all my equipment and start over as things were running slow”…….etc., etc., etc. And there’s nothing the EXTORTION TROLL can do about it as the then ‘Doe’ was NOT A PARTY yet in the Trolls extortion scheme lawsuit.

      Just a thought or two. It may be a questionable and/or dangerous course of action, but apparently perfectly ‘legal’ if necessary.

      PS – Can’t we all stop referring to these scumbags as “Copyright Trolls” and properly name them EXTORTION TROLLS……if it waddles, quacks, looks, and acts like a duck, it must be a duck. They are EXTORTION TROLLS…….Call ’em as they really are.

      • with all due apologies to all those great artists involved in a great movie Forest Gump…..

        EXTOTION IS AS EXTORTION DOES.

        STUPID IS AS STUPID DOES.

        Go Lipscomb go. Keep showing us what you’re made of.

  6. The quote from Proverbs at the start of the article is very appropriate, but some of the part of the quote contained in the … are as appropriate as the part shown. For instance :
    19. A false witness that speaketh lies, …

  7. If he didn’t live at the residence during the infringement time in question – then even a filed under seal of the Non MM titles should not come into play PERIOD. What rights do these non licensed in ANY state in the USA GERMAN investigators have in spying on and collecting this information on US citizens and present it in a court?
    Investigators must be licensed or some states have registration (where a license is not), but they must be vetted with background checks more so then the average person’s background check. I am not sure if most states courts will allow testimony from an investigator not registered in their state. I think the collecting of NON client information goes too far -especially when used as a “threat” over a defendants’ head. These shakedowns are more about the defendant having to prove their own innocence then the plaintiffs proving they have the right person before they sue.

  8. There better be heavy sanction. They have absolutely nothing on this defendant except that he is related to the internet subscriber. They should consider filing a lawsuit for harassment, slander, nation of character, Take a big bite out of Colette’s estate. It is also remarkable that a judge would allow this circus to continue.

      • MAKE KEITH PAY ! MAKE KEITH PAY ! MAKE KEITH PAY !

        sorry but a simple rah rah rah on the sanctions call sounded too unseemly

        Maybe a well-deserved bar complaint (or 5 or 50 or 500) to go along with those sanctions…..

    • Fuck going for Collette…she’s just another run-of-the-mill two-bit scummy porn hag. Go after Lipscomb. He’s the fucking extortion troll really making the decisions on who to name and what course of action to take. Yeah I realize its MM listed as plaintiff, but we all know its Keith and his german gangsters doing the dirty work and calling the shots.

  9. So at what point does the judge’s neck end up in a noose (metaphorically speaking), and how does it get there because (s)he allowed this farce to continue?

  10. LMAO you can sense the desperation in that filing. They knew there wasn’t a snowballs chance in hell that with the evidence Conlin presented to the court about the son being at school along with witness statements, class schedules, utility bills etc to the court that the court was going to find that the son did the downloading/infringment.

    Yes the plaintiff swore up and down that the son had did it, and how his Facebook profile said he liked movies and music and of course he had a penis, so he must be guilty and they had his IP address so there was solid evidence he did it.

    Much like Macek’s brilliant testimony, the Plaintiffs so called investigation is showing us how flawed these so called investigation are. Now that they have come to the realization that it isn’t the son, the sense of panic is setting in, they don’t want to end up with a Lamberson type verdict for costs, and wont admit that they are wrong, so what’s a troll to do?

    Well you name the next male that may have a penis and claim he is the infringer, yes that will solve everything. No, it just makes you look even more inept than you did earlier in the case. So I gather Otto the garbageman, the paper boy and the family dog didn’t look good as possible suspects, but that old guy…. he looks suspicious let’s name him.

    Honestly is one of the investigative methods to spin the bottle and whose ever name it lands on they are the infringer? Is this how it is done? May as well be, seems like the odds are about the same.

    It will be interesting to see what the Judge thinks of this brilliant tactical move to save the case. And this after all the crying and wailing and desk pounding that the son was the one who did and how there could be no other….yeah right.

    Somehow I do not think the Judge is going to think much of Lipscomb or this case after reading the fact they are now convinced Dad did it and it wasn’t the son ( sorry your honor, our spin the bottle investigative program had a malfunction, we have now corrected it and the wheel of infringment is now back to correctly identifying suspects. We can not tell you what pop manufacturers bottle we used in our investigation as this is a trade secret that the Internet Hate Groups can not know about )

    I would be hard pressed to believe that a judge would actually let this case progress any further forward after the plaintiffs searing up and down that it was the son and they had evidence and stuff to prove it.

    IMHO this case is ripe for costs being awarded to the defendant, and they should be.In my mind this is the reason to name the defendants dad ijn hopes that Conlin’s client will take a signed release to dismiss the case with each party paying it’s own costs and a confidentiality clause to boot.

    This judge is getting a good lesson on why you can not believe that an IP address will lead to an alleged copyright infringer and that said isp subscriber did the downloading of a copyrighted work.

    If I were the Plaintiff I would cut the defendant a cheque for their legal costs, send over a heartfelt apology and run away from this case as fast as I can before I end up with a Lamberson like fee award to pay.

    After Macek’s testimony in the AUS Voltage Pictures case, I would be putting in as much distance between my firm an bit torrent litigation cases as possible, but we all know that won’t happen as the trolls are addicted to that sweet easy settlement cash, and it’s easy money.

    Well the Prenda gang thought that too and they wen’t down in flames and are still on fire. I think we all see the smoke coming from troll litigation, it’s just a matter or seeing where the flames are coming from next

    • Let’s all hope that Conlin can do an equally good job and shove this one up Keith’s ass as well.

      I guess we all know even moreso now that Keith missed the ethics course in law school, not to mention the basic human decency lessons most people get growing up.

      Conlin should make a bundle on all of this alright, just as Lipscomb argues. It’s just that it should rightfully all come from Colette and Lipscomb and not the defendants. I hope the defendant(s) decide not to settle and instead goes for the jugular. There absolutely should be just compensation for the victims of malicious litigation/extortion schemes of MM and Lipscomb.

      • The defendant would be a fool to settle this case unless they were given substantial attorneys fees and an additional agreement the father was innocent. It is a certainty that MM can’t win this case and the defendant will win on the merits if it isn’t settled – which means attorneys fees.

        Even if they threaten to go after the Dad, they will be spanked the same way and end up paying two people’s attorneys fees.

  11. Hopefully the defendant fights modifying the named party. The defendant should be the prevailing party on this case, and then if Lipscomb wants to go after the dad he can file another case. If the plaintiff gets to just substitute, then this case doesn’t come to a conclusion and Lipscomb/MM get to at least delay paying the fees they rightfully should owe.

  12. I think the son should obviously file a fee application. The deposition is not moot because under the Copyright Act the plaintiffs good faith or lack thereof is relevant to a fee determination. I would also look into amending, or bringing a Colorado state court action for abuse of process–demand a jury. Do discovery and depositions. The abuse of process is: (1) using the legal process against an innocent person to do discovery to identify and name someone else, and (2) the extortion scheme/letter sent to an innocent person to extort money. There is a Colorado case that comes very close to giving as an example of abuse of process for bringing a lawsuit against a person not liable to get to someone else, or to coerce settlement against someone not liable. This web site has accumulated an abundance of evidence that properly presented should get the case to a jury. DISCLAIMER: this is not legal advice and should not be taken as legal advice. It’s just my opinion from the limited and incomplete information I have read.

    • Sorry, my mistake. But I would probably take the same approach in Florida. Abuse of process is a common law doctrine, so I assume Florida’s law would be similar. Fees for a defendant under the Copyright Act is the same legal standard. The state’s laws on the availability of punitive damages would be an issue.

  13. Judge said:
    This Court’s order referring the parties to mediation (Dkt. #28) is still in force, and no party is excused from attending. Accordingly, Plaintiff is directed to re-schedule the mediation conference.

    I don’t think he’s pleased!

  14. While I don’t like the idea that the Judge allowed the trolls to add the father to this rapidly falling apart case of alleged infringement the fact that the trolls could be on the hook for costs is still hanging over their heads.

    I do not like the thought that the trolls could scream up and down and pound on the desk while wailing away at how the son was the guilty party and it couldn’t have been anyone else because our investigation say’s it is so, and then when it turns out that whoops… maybe it isn’t the son due to all the evidence provided that showed he was no where near the parents house where the alleged infringement took place during that time period….but then the trolls say that they prayed really hard and Jesus has shown them the light and the error of their ways and that it is the father who is the infringer…praise Jesus we have followed your light to the guilty party.

    The fact that the judge allowed the trolls to sub in the father after all the desk pounding and overwhelming evidence that the trolls said proved the son did it, is a travesty IMHO. I see the trolls using this maneuver whenever an infringer that they say did it doesn’t pan out, we will name the next person who we are sure did it. did it.

    I do not agree with emboldening the trolls to keep adding in an individual to their case just cause they didn’t get it right the 1st, 3rd or 5th times. It makes me have the opinion the trolls will try and attempt this tactic in more and more cases if Judges allow it to occur.

    I realize there is more to this than ,meets the eye, but as we have all seen the trolls get pretty brazen after a failure and always refine their methods when it comes to the troll litigation machine to keep it going and the cash rolling in.

    IMHO there was more than enough ample evidence to show the court the trolls had this case and alleged infringer wrong from the start, and it’s evidence of infringement was beyond weak to non existent in this case in light of the documentation the defendant provided to prove he was no where near the location where the alleged infringement occurred resulting in this case being stopped in it’s tracks

    This case is honestly a waste of the courts time and the defendants money, the fact that it is dragging on makes me wonder why the judge is allowing this travesty to proceed. I am hopeful that the Judge is doing so to teach the trolls a lesson and the defendant will be awarded costs because of the plaintiffs so called evidence of infringment is not what it was made out to be.

    We will have to see what comes of it, but I hope the trolls don’t get to skate away scot free and the defendants is awarded the costs, because in my mind they are deserving of such after being dragged thru this circus of a case.

    • Not exactly – the judge didn’t let MM “sub” in the father – he was simply added as a party. Also note, the judge didn’t decide on the son’s motion and just put it on the back burner until after mediation. In the next few weeks, once the judge gets ahold of all the depo transcripts and supposed “evidence” he will rule on the motion to dismiss – and unless there is some bombshell in their “evidence”, that motion will be granted and the case will continue on against the father and this circus will start over.

      This ruling and the fact that the judge was so adamant about the mediation should tell MM all they need to know about moving this case forward and there should be a very, very favorable settlement to the family. This would be a disaster if it went to trial. I would imagine a hefty fee and promise to drop the case against the father will be the settlement, but we will never know. The fact that the judge allowed the father to be added gave MM the leverage to push the family to settle since if the motion to sub was dismissed out of hand, there would be no reason at all to settle.

      This case will never be judged on the merits – if they proceeed, MM is taking a hugely stupid risk. The judge allowing the father in likely cost the defense lawyers a nice chunk of their fees, but it prevents the litigation from continuing unless MM doesn’t get the message.

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