Guardaley | X-Art
Defendant’s expert witness report suggests that Malibu Media’s investigators doctored evidence
As it happened in many other Malibu cases, no direct evidence of infringement — either admission of wrongdoing or traces of plaintiff’s smut — was found here. Alleged Bittorent transactions recorded by foreign players are not enough: this type of indirect “evidence” is unlikely to fly in US courts. This is the point where a reasonable party offers at least a walk-away to the defendant.
Yet we deal with Keith Lipscomb’s enormous hubris here. Instead of letting a defendant go, he usually unties his magic bag of tricks and pulls out some painfully familiar tactics: delays, incoherent depositions aimed at catching the defendant in some sort of a discovery violation or perjury, delays, threatening to depose neighbors, accusations of spoliation of evidence, hunt for ephemeral computers and hard drives that were allegedly hidden from the plaintiff, delays, fishing trips to ISPs, and so on…
No surprise that many items from this list found their way to this case. At least one trick failed though: on 10/14 the troll attempted to extend discovery deadline to depose Comcast and to compel the defendant to produce allegedly undisclosed computer. Judge James Cohn disagreed:
Plaintiff’s Second Motion for Extension of Time Within Which to Complete Discovery and Motion to Compel Production of Newly Disclosed Computer. Plaintiff has not shown good cause for the requested extension. The attached discovery materials indicate that Defendant objected to the breadth of Plaintiff’s discovery requests and the record shows that Plaintiff did not move to compel. Plaintiff has not shown that Defendant lied about the existence of the “newly disclosed computer” referenced in the motion. Further, Plaintiff’s inability to depose Comcast’s corporate representative during the nearly seven months allowed for discovery does not constitute good cause for an extension.
Fed up with this circus aimed solely at delaying the proceedings in this unwinnable lawsuit — in a hope that the defendant would give up and pay, attorney Conlin decided that it was the right time to ask the judge for a summary judgement:
Exhibits:
- Plaintiff’s subpoena on Comcast
- Comcast response to Plaintiff
- Defendant’s First Request for Admissions on Plaintiff
- Declaration of Robert Dare
- OpenPeaks Response to Plaintiff’s Subpoena
- Plaintiff’s Response to Defendant’s Request for Production of Documents
- Expert Report Tom Parker
- Plaintiff’s Response to Defendant’s 1st Set of Interrogatories
- Statement of Facts
The expert report
Exhibit 7 is of a particular interest: the defendant hired his own expert, Tom Parker, to get an opinion on the quality of the German evidence and on the merits of Patrick Paige’s report. And that opinion turned out pretty damning.
The defendant’s expert’s report was served on the plaintiff on 9/11, and the vermin nest was seriously disturbed. On 9/17, one day prior to the discovery cut-off, Malibu (via Daniel Shatz) filed a hysterical motion to either exclude the defendant’s expert witness or to extend the expert discovery deadline by 90 days. While the defendant’s disclosure of his expert only one week prior to deadline admittedly didn’t give the troll a lot of time to react, I don’t see how a week in advance was an “eleven-hour disclosure.” Anyway, the troll clearly wanted either to add yet another (substantial) delay or, ideally, to get rid of the inconvenient report whatsoever. (Fast forward, the judge did give the troll more time, but less than a month, and he didn’t exclude the defense’s expert witness.)
So, why did this report rile Lipscomb & Co so much? Well, in addition to some common sense opinions, such as “IP address doesn’t identify the infringer,” the defendant’s expert found some serious inconsistences in the evidence supplied by the plaintiff.
First, the plaintiff’s “evidence” absolutely doesn’t prove that anything beyond a less-than-a-second movie piece was shared by the defendant (thus, the second necessary element of an infringement — copying of a substantial portion of a work — simply doesn’t exist)¹:
I examined the PCAPs provided by Plaintiff and compared them with the video files provided by Plaintiff. When I looked at them, for example, the PCAP file for file hash No. 91 D22A6F66495928D68FE6EFE63FC676FD6AC763_1606 (file name 98.249.146.169_91 D22A6F66495928D68FE6EFE63FC676FD6AC763_1606.pcap), determined that the size of the allegedly downloaded bits recorded in that PCAP amounted to only 67KB, which is substantially smaller than the size of the full video, which was 441.2MB. The size of the video for that file is about 6500 times larger, than the size of the PCAP (file name “X-Art- Hot Orgasm- Scarlet [1080p].mp4” which was compressed with a file name 91 D22A6F66495928D68FE6EFE63FC676FD6AC763. tar).
If the entire video file had been downloaded and captured, the size of the PCAP would have been at least slightly larger than the video file because it would contain the same data.
Yet the most incriminatory is the suggestion that the German PCAP artists doctored their evidence:
The data in the PCAPs presented appears “filtered.” In other words, the data does not appear to be complete. For example, the PCAPs completely lack any UDP (User Datagram Protocol) data. The BitTorrent client that was allegedly used by the downloader is Transmission, version 2.42. Transmission began implementing UDP support in version 2.3. Transmission 2.42 definitely has UDP available; therefore, it should have shown up in the PCAP. The complete absence of UDP traffic in the PCAP log leads me to believe that some of the evidence has been deleted or removed.
The fact that the data was filtered makes it appear that Plaintiff may be hiding something. If Plaintiff had supplied complete data, I would have been able to determine whether, for example, Plaintiff’s investigator had “seeded” the files. Therefore, the lack of data makes it inconclusive, yet possible, that Plaintiff seeded the files. It also makes the integrity of the files questionable.
Other inconsistences stressed by Tom Parker were:
I examined the “reports” Plaintiff served along with the PCAP files. The reports says they were created by Patrick Paige. I noticed differences between the reports and the data in the PCAPs. The report for file hash, 91 D22A6F66495928D68FE6EFE63FC676FD6AC763, for example, contains only 61 entries, whereas the PCAP contains 181 entries. Likewise, the other reports also failed to completely match the corresponding PCAP. Therefore, the reports are incomplete.
or:
Along with the PCAPs, I examined the “MySQL” PDF attached as Exhibit “A” to Michael Patzer’s declaration (Page 4 at ¶ 21 ). However, it too appears to be incomplete, as well as misleading. The MySQL report contains time stamps that do not exist in the PCAP. For example, for file hash number 91 D22A6F66495928D68FE6EFE63FC676FD6AC763, the MySQL includes only six time stamps […]; only one of these matches to an entry in the corresponding PCAP […]
Alright, I’m not going to copy and paste the entire report: it discusses more problems with the plaintiff’s cockamamie evidence.
Even if only some of the accusations turn out to be true (and to my view, the inconsistences presented are hard to explain away), this report will leave a scar on the shakedown beast’s body. I predict that Lipscomb will scramble all his fallacious sophistry to discredit both the report and the report’s author. Will he succeed in it? I don’t’ know: in the short run — maybe, but eventually the house of cards built from bogus evidence and predatory litigation tactics will collapse.
The rebuttal deadline is October 28. I’m eager to see Malibu’s argument and definitely will post an update.
Followups
¹ Not that it is something new: a year ago the defendant in Elf-Man v Lamberson won $100K in attorney fees largely because he proved that German evidence is grossly insufficient.
Fight © Trolls 
I believe what we are seeing is akin to what started to contribute to the fall of the Prenda gang.
This is almost like buying a used car, sure at first glance it looks like a nice ride, it’s when you start kicking the tires, and looking under the hood that you start to see thing’s that make you think ” Gee, this doesn’t looks so hot ”
All it takes is for one judge to note the defendants expert report and it all snow balls from there, ask John and Paul about that.
I see trouble for troll central in Florida on the Horizon. More and more defendants are fighting then pay,more and more Judges are starting to throw some serious side eye the trolls way.
While there are still many troll friendly jurisdictions, there are also just as many that are tiring of seeing this sideshow appear on their docket like clockwork, and playing out the same way with regularity.
Much like our German friends game fell apart in historic fashion when the litigation was at it’s height back in Germany, teh trolls end up having to take their show on the road. The trolls are desperate to keep it going as long as possible, hence the attempts to move into different countries, and alas the heat in the good old USA is starting to come to a boil.
The trolls are so desperate to keep that easy cash coming in that they are returning to jurisdictions where they have been under heavy scrutiny before ( if that doesn’t tell you how desperate they are ) and of course using some local lawyer, who can take the fall when things go south ( paging Brett Gibbs )
Obviously the trolls have learned nothing from the fall of those who thought they had this easy settlement cash game down cold, and are still felling the repercussions to this day. It’s when people think they are too smart for anything to happen to them, that it usually starts to unravel.
Tick Tock.
Poor, poor Colette. First she couldn’t afford a proper mansion. Then she couldn’t afford proper lawyers. Now she can’t even afford proper evidence.
I always suspected the reason the investigators are based outside of the US and that these cases never go to trial, is because they have no real evidence. Most of the judges have no idea of the technology and what the data means or how meaningless it truly is.
Funny how they demand defendants turn over a huge wide ranging list of “evidence” and scream perjury as often as they can when someone in an hours long deposition can’t accurately remember details from over a year ago, yet they hide portions of their evidence from review.
Of course these entire cases are all fueled by a millisecond of data that does not prove an entire file was downloaded. It is all about trying to make things look bad, because they only need to convince the court that it is 50.0001% more likely than not. When you hide things from the court and attach all sorts of “evidence” (of the same millisecond capture) one should be asking why they are not being as upfront an open as they demand the otherside be in these cases.
Much of their “evidence” is based on requiring leaps of thinking not actual evidence.
Doe has a penis, he then must love porn.
Doe liked a movie, he must have downloaded it.
Doe has a common hobby, he must have also downloaded this other content.
Doe “forgot” that a flash drive was attached to the computer 2 years ago, he must have used that to hide ALL of the evidence.
They demand that Does turn over entire hard drives & other things, yet the courts allow MM to submit doctored evidence that is not complete.
MM refuses to answer questions in discovery, yet screams if they dislike answers from Does.
These cases really are down to the he said/she said level and are a waste of judicial resources. There is no solid evidence, yet the focus is drawn to what they claim is missing rather than the simple fact that we can’t even prove the Doe downloaded the entire movie. They can imply it, but one can also imply that pigs can fly as long as no human is watching them directly… doesn’t mean that is true either. They claim this massive monitoring system, but it only seems to work for milliseconds at a time.
I predict an entertaining massive melt down of indignation that their super expert would be called into question. I also expect the expert’s credentials to be attacked. The academics didn’t look to strong.
The are multiple reasons to use the offshore investigators. But a significant reason is likely that doing so allows them to present one-sided evidence. There is no reasonable way to depose the “witnesses”, no enforceable standards that they need to follow, and no effective remedy for false statements/claims.
Judges should be asking why a U.S. company suing a U.S. defendant over domestic activity is using a known-fraudulent foreign company to gather the evidence.
But..but…pigs *DO* fly…just look at the winged ones all over Cincinnati — once known as porkopolis!!! (And if you think I believe pigs fly without quite a bit of typically human help, well, I have a one-day-only special on a bridge of mine in Brooklyn, just for you, it’s gonna go fast!)
Hopefully Mr Parker will be able to explain himself as well as Delvan Neville. I love how he explains the process of making up evidence out of thin air!
I don’t get this. How can they claim anything with additional evidence?
35. A true and correct copy of each and every file listed on any “expanded
surveillance” or “additional evidence” list that your investigator downloaded as part of its
surveillance.
Response to Request No. 35: Plaintiff is not in possession, custody, or control of any
documents responsive to this request because neither IPP nor Excipio “downloaded” the thirdparty works listed on the additional evidence.
“Doctored” or “may have been doctored” evidence is certainly amongst the suggestions, since the expert report specifically discusses the relative ease of falsifying the “evidence” — pointing out that these are just files and as such well within the production capability of anyone with an editor, a bit torrent client, and wireshark, all available for the downloading.
So it is perhaps hyperbolic to use the word “doctored”…since “never attribute to malice that which you can attribute to stupidity” is an aphorism, and doctoring implies deliberate malice. There are certainly consistency problems with the data from the trolls, as identified in the report, and the report leaves the reader to assign the motives.
There’s a reason why those who seriously hunt internet predators lure them to physical locations. Suddenly, all that data is merely corroborating, rather than the only thing.
I think “Doctored” fits when you see that they filtered some data out, and then added full movie names to the SQL files to make it appear that it showed full movies instead of the single small segment it actually covered.
It is always nice when the defendant shows up with an expert that not only knows what he is talking about, but can describe it with enough clarity to blow through the illusion that the MM “expert” attempts to portray.
One document from this docket worth noting:
Defendant’s motion in limine to exclude Patrick Paige’s testimony.
Exhibits:
The more I read of Ms. Conlin’s court submissions, the more impressed I am. Lipscomb has found himself with a formidable opponent.
Does anybody know if the Motion for Summary Judgement that MM filed on 10/28 is for the entire case or just the affirmative defenses and counterclaims? The email from Ms. Conlin that has been recapped and is an attachment indicates somewhat that it may be the latter, but some of the other titles suggest they may be going for the whole thing.
Yes, it’s for the whole thing. I’ll recap and post it later today (reluctant to buy all the exhibits though).
Got room on my Pacer account but it will be tomorrow before I have any time available to do it.
I recapped the MSJ and the defendant’s deposition transcript. Done reading for today (stopped at p.11). Will finish tomorrow and update the post (either to write something or at least just post the documents).
Will see if any other exhibits are worth recapping.
I read through “Statement of Undisputed Material Facts” by MM, and would be a very accurate document if it were titled “Statement of Disputed suppositions”.