…a proud look, a lying tongue, and hands that shed innocent blood…|
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.
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 reason — by 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
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
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.
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.
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.
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.
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.