And suddenly, on 8/11/2015 the case abruptly ended with a walk-away settlement (which means that both parties are left to bear their own fees and costs).
Those who follow tech media are aware of some of the recent developments. Ars Technica and TechDirt ridiculed some Malibu’s motions in limine — a lame attempt to keep the yet-to-be selected jury in the dark about the public’s not-so-flattering opinion about the porn shakedown business in general, as well as about the existence of this blog in particular (Die Troll Die’s too). The troll even moved to shield the jury from hearing certain unflattering terms (“copyright troll,” “extortionist,” and even “pornographer”), which was also widely ridiculed.
Earlier this year this case was also in the news: Magistrate Dinsmore surprisingly ruled that the defendant had destroyed his failed hard drive not in bad faith, thus no sanctionable spoliation took place².
On 7/20/2015 Lipscomb moved to sanction the defendant for his “proven perjury.” The troll claimed that
The version of Internet Evidence Finder Mr. Paige used at the time of his original examination was unable to parse out certain data such as shellbags and “jump list dest. list entries”. Using an updated version of the software, Mr. Paige located six (6) network storage locations (a/k/a drives) that were not identified or produced.
In other words, Lipscomb attempted to introduce new evidence on the eve of the trial, which is regarded as “litigation by ambush” and is universally frowned upon. The claim by a disgraced forensic expert Patrick Paige was also highly questionable: the software in question started supporting shellbags and jump lists a year ago: on 8/7/2014 and 6/18/2014 respectively. There is no explanation why Paige “found” new information just recently: this motion indeed looked like an ambush.
So why did Lipscomb and Co. abandon a seemingly strong case and forfeit hundreds of thousands in attorney fees, which would be undoubtedly awarded if the troll won the case?
While the exact answer to this question will probably never be known (due to usual settlement confidentiality), we have been watching these cases long enough to make an educated guess. In my opinion, Lipscomb was too scared to lose this lawsuit: such loss would definitely slow down his well-oiled extortion machine. In other words, a win in the jury trial lottery was far less valuable than the consequences of a loss.
While I don’t possess a magic crystal ball and can’t tell how the trial would play out, the prospect of Malibu’s loss was more than real: Indiana is a rather conservative state, and it is not unthinkable that a jury would find little love for an obscenity purveyor, especially the one involved in extortionate practices aimed to pad its already filthy wealth by driving struggling fellow middle class families into huge debt. Just look at Lipscomb’s word dance in his proposed jury selection questions.
The above-mentioned attempt to ambush the defendant with new evidence could also play a role. This “newly” discovered data didn’t produce any smoking gun: the plaintiff’s motion only alleged that the defendant was not truthful in his disclosures concerning his hard drives. However, no traces of Malibu’s obscenities were ever found.
This event may be considered not so newsworthy by the media: I understand that stories about copyright troll asking not to be called “copyright troll” generate more interest. However, to those people who closely follow the developments in the US copyright trolling landscape it is huge news.
Essentially, the most prolific copyright troll in the US history agreed to the critics’ accusation that it has absolutely no intention to try thousands of its shakedown cases in front of a jury, and uses (read: abuses) US courts solely as a part of the money-making machine. Not really news, but this bold confirmation is very important.
Some judges understand what’s going on, yet, alas, a critical mass is nowhere near. I’m sure it’s a matter of time. It took four years for IARDC to start the proceeds against Prenda. Guardaley trolls (including Lipscomb/Malibu Media) are more cautious, and while they are not really different from Prenda, generally they don’t resort to outright fraud, so, unfortunately, it will take much more time to eradicate this particular species of parasites.
Last but not least
In one of the status reports (can’t currently locate) Lipscomb/Nicoletti called the defense attorney Gabe Quearry “difficult” and “unreasonable.” Normally, these words have a negative connotation, but not in this case: “reasonable” in Lipscomb’s vocabulary evidently means cooperating with his racket by talking a client into settling. It is my strong belief that “difficult” people (in this sense) are those who cause the change for the better: Gabe Quearry chose to fight for his client and the cause, and made this world a better place. Not that the price was low: of course three years of unneeded stress left scars — both emotional and financial. I wish Gabe and Michael all the best.
¹ Lipscomb touts so-called “Bellwether trial” as a valid precedent, “the first Bittorent case that was tried.” This is beyond laughable. I don’t know any attorney (except for the trolls) who took this de facto settlement conference seriously: all the defendants settled prior to what was formally a bench trial, no cross-examination of witnesses took place… Two years later Lipscomb threw a couple of bones to then defense attorney A. Jordan Rushie, apparently for not interfering with this miscarriage of justice. It was clearly a show directed by Lipscomb, and it was aimed at ramping up future settlement demands. Even judges have been scoffing at this travesty.
² Three months ago Magistrate Dinsmore ruled the opposite way in Malibu Media v. Tashiro (INSD 13-cv-00205), finding that spoliation did occur, which led to a default judgment — a rare remedy in an actively litigated case. Lipscomb is now asking for $630,000 in damages (no, it was not a typo). As a result, the family of a nurse and a sales manager is being driven into bankruptcy by a stone-hearted obscenity purveyor, a pathological liar and a law breaker Colette Field, who claims that “We do not want to cause anyone hardship.”