Guardaley | X-Art

Verizon is fed up with Lipscomb’s increasing arrogance

On Thursday I wrote a post titled “Is Verizon fed up with Lipscomb’s increasing arrogance?” Today’s caption may look like a copy-and-paste error, but it is not: as you can see, the question mark is not there any longer.

Less than a week after intervening in a SDNY case to oppose an overreach, burdensome subpoena, Verizon attorneys chimed in a Florida case (Malibu Media v William Sharp, FLMD 14-cv-02138) with a harsh Motion for Protective Order and Motion to Quash subpoena.

The language of this motion doesn’t leave any doubt that Keith Lipscomb’s untethered greed did indeed wake up the bear, and the bear is irritated. The document itself is largely the same as the one filed in New York, with the addition of more elaborate Section III — this section addresses Lipscomb’s previous opposition and discusses the Cable Act in more detail — particularly how Lipscomb’s shakedown factory misleads the court by misinterpreting the Act:

Plaintiff’s contrary interpretation of the Cable Act — as recited in its opposition filed October 1, 2015 (Dkt. 53) — is wrong. Plaintiff relies erroneously on subsection (c)(2)(B), which places restrictions on governmental entities that seek information from ISPs. (See 47 U.S.C. § 551(c)(2)(B), referring to subsection (h), which addresses law enforcement subpoenas.) The separate prohibition against disclosing the “viewing or other use by the subscriber of a cable service or other service” or the “the nature of any transaction made by the subscriber over the cable system” is contained in section 551, subsection (c)(2)(C), which applies to all subpoenas: This subsection says nothing about government-entity subpoenas and applies squarely here. […]

Footnote 3 is quite noteworthy:

It also defies common sense that civil litigants like Malibu Media would be permitted a broader range of discovery about Verizon’s subscribers than law enforcement. Nothing in the Cable Act suggests the Legislature intended that absurd result.

That’s not all. Verizon essentially accuses Lipscomb and the pornographers of wasting scarce Verizon’s resources, which are needed to investigate real crimes. This kind of entitlement is yet another instance of harm that parasitic copyright trolls inflict upon the society. Indeed, it’s like summoning a fire engine to water one’s lawn when real fires are destroying homes nearby:

Finally, there are practical implications of Plaintiff’s sought-after discovery. With more than one thousand cases filed by Malibu Media this year alone, permitting depositions of Verizon would create an entire industry devoted to discovery of ISPs — and take away from resources needed to respond to law enforcement personnel and others who require Verizon’s attention to emergency criminal investigations, and other pressing business. The discovery sought by Plaintiff is not appropriate under the circumstances.

 

(Declaration of Neil Schmidt, Verizon’s subpoena compliance officer and Malibu’s subpoena to Verizon in this case.)

To illustrate the sheer volume of the problem, Benjamin Fox (Verizon’s attorney) filed a declaration supported by the list of 1,500 Malibu Media cases filed over this year only (53 pages!)

Significantly, while Verizon acquiesced in complying with subpoenas in the past, Lipscomb’s failure to pay was probably the last straw:

To my knowledge, the subpoena was not accompanied by the required witness fee to require a Verizon employee to appear for a deposition in Texas. If Plaintiff had provided a check for an appearance fee with its subpoena, our records would reflect it, and they do not.

Also interesting is the detailed opposition to Malibu’s requests:

 

I hope that other providers (especially Comcast) follow Verizon’s lead.

I also hope that Lipscomb’s enormous hubris overcomes his consciousness: I know we would immensely enjoy the show Lightspeed v. Smith: the Sequel.

Coverage

Update

10/7/2015

Today a hearing on the pending motions in this case, including the Verizon’s MTQ was set to take place in Tampa on November 9. No telephone appearances permitted.

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