Guardaley | X-Art

Who leaks Malibu Media’s porn before the release?

It was proven beyond any doubt that Prenda seeded their smut on Bittorent to entrap hapless file-sharers. Given the striking similarities between Prenda and Guardley-driven copyright shakedown outfits, including Lipscomb/X-Art/Malibu Media, it wouldn’t be unreasonable to believe that the Karlsruhe-Miami-Malibu cartel’s hands are not so clean in this respect either. Indeed, numerous defense attorneys asserted that Malibu either seeds their porn itself, or someone does it with its blessing. Even Jordan Rushie, before he started doing errands for Lipscomb, suggested that

When considering litigating the “swarm theory,” Malibu was faced with the prospect of dozens of defendants, joined in their common defense against the plaintiff, with an initial seeder who very well may have had a license to publish the works to BitTorrent or elsewhere. [FN: Malibu’s investigation company, IPP, Ltd., was previously called Guardaley, Ltd. While it had that name, it was accused of being the seeder for swarms its customers later such over.]

[…]

As Malibu does freely distribute the relevant films, it is entirely possible, if not most likely, that the initial seeder had permission to distribute the files via BitTorrent. [FN: Or it was Malibu’s own agent.] If he or she did not, it is entirely likely that a participant in the swarm, from whom Doe 13 received the file, may have had such permission.

Attorneys in these cases are generally protected by the litigation privilege that shields them from defamation claims. I don’t have such luxury. Therefore, I expressly state that I don’t possess enough evidence to affirmatively accuse X-Art, Lipscomb, and their unlicensed “investigator” Guardaley/IPP/Excipio of deliberately leaking their movies.

However, there are facts that at very least should make judges and juries (if it ever comes that far, which I doubt) extremely skeptical when they hear plaintiff’s laments about evil pirates destroying their fine business, and the “Unclean Hands Doctrine” defense may actually work.

The facts below are mind-boggling. I analyzed the exact timestamps when X-Art’s smut first appeared on the Pirate Bay. Assuming that X-Art posts new videos at 21:00 PDT¹ a day prior to the sated publication date, I found at least 50 instances when the porn hit the Pirate Bay earlier than it appeared on x-art.com. Some movies might be released earlier, so I cannot vouch for some marginal cases, where a Pirate Bay upload took place a couple of hours before 21:00, yet many instances below cannot be explained this way. For example, how can X-Art explain that their 02/15/2013 flick “Afternoon Picnic”

became available on the Pirate Bay almost 5 days prior to the release?


X-Art, when confronted with such information, tried to explain away the early TPB uploads by “hacking.” For example, during the Bellwether settlement conference on 6/10/2013, Lipscomb pre-emptively asked the plaintiff’s representative (Colette Field):

Have you ever had any security issues associated with BitTorrent?

to which she replied:

Yes. Actually, just this year our servers were hacked twice, and the videos, before they were released on our site, were actually uploaded onto BitTorrent’s, and we lost a lot of sales […]

Well, we are talking about the pattern of early uploads spanning three years, and the distribution of the occurrences is quite uniform. IMO, the “hacking” explanation doesn’t pass the smell test.

Number of early uploads per month

 

Something is definitely going on, and it stinks badly. Even if none of the beneficiaries of the settlement cash flow is responsible for the leaks, willful blindness to the issue suggest that the trolls are not interested in stopping these leaks at all, as it may slow down the gravy train.

The list of the early uploads

I checked all the times diligently, yet if you notice any mistakes, please let me know. Note that the Pirate Bay uploads are marked with GMT, which is 8 (or 7 during the daylight saving period) hours ahead of PDT. Be warned that the links to X-Art (movie titles) and the TPB pages are NSWF. The screenshots are cropped and safe.

Title Release date TPB upload (GMT) Difference Links
Afternoon Picnic 2/15/2013 2/10/2013 09:15 4d 19h 44m tpb screenshot
All Tied Up 10/19/2013 10/18/2013 23:00 4h 59m tpb screenshot
Another Night 3/13/2013 3/11/2013 05:30 1d 22h 29m tpb screenshot
Back to Bed 6/8/2013 6/7/2013 13:42 14h 18m tpb screenshot
Best Friends With Benefits 3/7/2015 3/6/2015 06:44 22h 15m tpb screenshot
Black and White 2/22/2013 2/20/2013 08:46 1d 20h 13m tpb screenshot
Capture Me 5/16/2015 5/15/2015 05:18 22h 41m tpb screenshot
Casual Affair 8/1/2012 7/29/2012 12:45 2d 15h 14m tpb screenshot
Circles of Bliss 3/20/2013 3/19/2013 06:29 21h 30m tpb screenshot
Cum Worthy 3/13/2015 3/12/2015 06:08 21h 51m tpb screenshot
Dangerous Game 10/10/2012 10/8/2012 07:27 1d 20h 32m tpb screenshot
Don’t Keep Me Waiting #2 4/18/2015 4/15/2015 08:03 2d 19h 56m tpb screenshot
Featherlight 4/2/2013 4/1/2013 06:27 21h 32m tpb screenshot
Finding Elysium 11/15/2012 11/14/2012 06:55 22h 04m tpb screenshot
Floating Emotions 4/5/2014 4/5/2014 01:54 2h 05m tpb screenshot
Formidable Beauty 11/17/2012 11/16/2012 06:36 22h 23m tpb screenshot
Heart & Soul 11/24/2012 11/23/2012 23:10 5h 49m tpb screenshot
Inspiration 8/10/2012 8/2/2012 20:30 7d 07h 29m tpb screenshot
Introducing Angelica 11/28/2012 11/28/2012 02:35 2h 24m tpb screenshot
Journey 10/7/2013 10/6/2013 21:03 6h 56m tpb screenshot
Just the Three of Us 2/21/2014 2/21/2014 00:52 4h 07m tpb screenshot
Just Watch #1 5/22/2014 5/21/2014 06:09 21h 50m tpb screenshot
Keep on Cumming 4/30/2015 4/29/2015 10:48 17h 11m tpb screenshot
Late for Work 3/15/2013 3/14/2013 05:45 22h 14m tpb screenshot
Let Me Join You 3/15/2015 3/14/2015 05:35 22h 24m tpb screenshot
Lipstick Lesbians 12/15/2012 12/15/2012 02:38 2h 21m tpb screenshot
Little China Girl 5/19/2015 5/18/2015 17:18 10h 41m tpb screenshot
Little Play Thing 4/10/2015 4/8/2015 10:03 1d 17h 56m tpb screenshot
Little Rain Must Fall 1/23/2013 1/21/2013 07:52 1d 21h 07m tpb screenshot
Loving Angels 11/30/2012 11/28/2012 06:48 1d 22h 11m tpb screenshot
Miss Perfect 10/1/2012 9/28/2012 00:39 3d 03h 20m tpb screenshot
Only Lorena 6/2/2013 5/30/2013 11:41 2d 16h 18m tpb screenshot
Party Boat 9/15/2013 9/13/2013 20:34 1d 07h 25m tpb screenshot
Photo Fantasy 9/28/2012 9/27/2012 15:25 12h 35m tpb screenshot
Pink Orgasm 7/16/2012 7/14/2012 17:19 1d 10h 40m tpb screenshot
Private Time 8/21/2012 7/30/2012 16:31 21d 11h 28m tpb screenshot
Rendezvous 4/12/2014 4/11/2014 06:13 21h 46m tpb screenshot
Side By Side 9/3/2012 8/31/2012 13:54 2d 14h 05m tpb screenshot
Sneaking In 8/17/2013 8/17/2013 02:56 1h 03m tpb screenshot
Spilled Milk 3/8/2013 3/7/2013 07:10 21h 49m tpb screenshot
Starting Over 8/27/2012 8/26/2012 10:33 17h 26m tpb screenshot
Stay for a While 7/5/2013 7/4/2013 21:58 6h 01m tpb screenshot
Strawberry Blonde 6/22/2012 6/20/2012 10:13 1d 17h 46m tpb screenshot
Tarde Espanola 11/22/2012 11/21/2012 06:34 22h 25m tpb screenshot
Three for the Show 9/24/2012 9/23/2012 16:57 11h 02m tpb screenshot
Transcendence 7/30/2012 7/29/2012 11:14 16h 45m tpb screenshot
Unbelievably Beautiful 8/24/2012 8/22/2012 20:32 1d 07h 27m tpb screenshot
Vacation Fantasy 11/10/2012 11/9/2012 07:55 21h 04m tpb screenshot
Why I Love Czech Girls 11/7/2014 11/2/2014 05:13 4d 23h 46m tpb screenshot
Wild Things 10/5/2012 10/3/2012 16:39 1d 11h 21m tpb screenshot

Update

1/14/2015

I’m happy to observe that this humble research is already in use. On 1/12, attorney Alan Green filed the Answer to the complaint in Malibu Media v. Slayton (PAMD 15-cv-01206). From the Affirmative Defenses section(emphasis is mine):

50. Defendant believes, and therefore avers, that Plaintiff is involved in a scam which relies on public humiliation to coerce settlements from persons who consume pornographic materials.
51. Review of numerous databases indicates that, during in the time period in question, numerous movies purported to be Plaintiff’s copyrighted materials have appeared on BitTorrent before they were released on Plaintiff’s website.
51. Despite this, Defendant has taken no public action to curb the proliferation of their materials by the individuals who initially obtain and release such videos, focusing their attentions instead on the much larger—and more profitable—class of persons who later obtain copies of such materials.
52. If Plaintiff intended to protect its legitimate interests in its copyrighted materials, it would certainly focus its considerable prosecutorial efforts towards — at least in part—those relatively few individuals who are distributing such materials in the first instance.
53. By failing to take appropriate steps to protect their copyrighted materials, Plaintiff’s claims are barred by the doctrines of waiver and estoppel.
54. By perpetuating a scheme to coerce settlement proceeds before this Honorable Court, Plaintiff’s claims are barred by the doctrine of unclean hands.
55. Plaintiff has, effectively, abandoned its copyright over the materials in question.
56. Plaintiff has failed to mitigate its damages.

Related

 


¹ I watched X-Art’s new releases for a couple of months in 2013, and every new upload appeared around 21:00 PDT as regular as clockwork.

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Discussion

27 responses to ‘Who leaks Malibu Media’s porn before the release?

  1. Nice research and I agree that there are too many coincidences for it to be all coincidental. This pattern of premature uploading could be nicked at the bud if there was an incentive to do so but there is not.. Liberty Media did it in short order because they legitimately wanted to clamp down on the uploading but this situation appears to be different somehow. Isn’t it true that Malibu Media releases there content to IPP ASAP so as to monitor BitTorrent activity?

  2. Anyone else want to savor the idea that this is more evidence than they initiate these lawsuits with?

    Why should they object if we talk to their neighbors and depose them if they are the ones leaking these files online?

    Why should they object to us taking their computers, imaging them, and just looking for anything we can claim is damning even if it is in direct violation of the courts directive?

    If they have nothing to hide they should give us all of this access and if anything looks remotely hinkey we’ll claim spoliation even if we find no evidence to support that the only people with access to this content before its release had nothing to do with the content getting into the hands of others who released it in the wild before it was every publicly available. (This is totally possible, hackers are supervillians who can access computers with their minds.)

  3. Nice litigation strategy here. Demand a deposition re their efforts to mitigate their losses. Oh, you won’t answer the subpoena? I infer you didn’t do anything, and assert failure to mitigate as a(n affirmative) defense

    • Alas, the copyright case law is so fucked up that if a plaintiff elects statutory damages, it doesn’t have to show any mitigation efforts.

      (Maybe there is an opposite case law too, but I didn’t see it yet.)

  4. If we look back to the Phila. Bellwether non-trial, Malibu Media was suing people and did not own the copy rights. Brigham still owned them. Just a guess, but perhaps Brigham had put the videos on the internet, to promote his website and then Collete and Lipscomb came up with brilliant idea of suing everyone.

  5. From what i can recall, TPB gave details of the ip Address that was used to upload certain smut that Prenda was suing over and the IP Address that was used to upload was traced back to a certain person with a connection to Prenda and this was all used as evidence in one of the cases for the defence that Prenda was suing over.

    Now, I wonder if TPB could be persuaded to reveal the IP address(es) that was used to upload all these Malibu Media smut and if these IP addresses when traced back to a person/company with a connection to Malibu Media then i wonder what the excuse Malibu Media will give to get out of the fact that the IP has a connection to Malibu Media. If Malibu Media comes out with the excuse that an IP address does not prove anything or that an IP address does not prove who the person was responsible that is connected to them then wham bam they will destroy all their accusations with suing people with stating that an IP shows/proves who is responsible for the infringement.

    • Not possible. Prenda was stupid to seed stuff themselves directly, while in the Malibu case the chain of events is different and more complicated. Malibu stuff is seeded by prolific bots (C3Porno, drarbg, kelvin09, r0thschild etc.) that aggregate stuff from other sources, so called “pre-databases” — warehouses where pirated stuff is initially dumped to. Those bots seed thousands of other titles, both porn and non-porn. First, I don’t believe TPB is willing to reveal these bots’ IP addresses, and anyway I’m sure these bots are behind proxies/VPNs. Second, we will learn nothing. Getting to the pre-database uploaders is much harder, and I don’t know this scene’s mechanics to competently opine. That’s why I used the term “leaked” rather than “seeded.”

      • I wouldn’t call it completely impossible; remember these folks have crossed TPB and they will be sorely tempted to help if they can.

  6. There is an adage that anytime a news headline asks a Yes/No question, the answer is always No. This article may be the exception that proves the rule.

  7. If crackers were responsible for the uploads, I should expect some hacks to be released before the final master was definite. If the early release is the final version every time, it would appear like the crackers are showing remarkable restraint. We are not talking about the sort of plot where three versions are recorded in order to keep everyone in the dark about the “official” ending until the release. Why aren’t the crackers getting an early start on director’s cuts?

    • Interesting observation.

      If I were a defense attorney at the discovery phase, I’d demand the evidence of “hacking.” While the “hacking” claim is hardly believable, it is impossible that no digital trail of such events (including email discussions) exists.

  8. Reblogged this on TorrentLawyer™ – Exposing Copyright Trolls and Their Lawsuits and commented:
    Malibu Media, LLC has formed a habit of suing defendants for downloads that appear on the bittorrent networks literally a day or so after they are supposedly “published” on their website. The videos themselves are not copyrighted often for another three-months.

    When questioned about this tactic, they claim that their activities are legitimate because U.S. copyright law gives a content creator up to three months after “publication” to file their copyright with the U.S. Copyright Office. They are correct about this three-month rule.

    However, I am convinced that their stated “publication” is really no publication at all. Why? Because according to the statutory definition of “Publication,” posting a new porn video onto their website is more of a “public performance,” and that does not satisfy the requirement for “publication.” (see, 7 U.S. Code § 101 – Definitions @ https://www.law.cornell.edu/uscode/text/17/101 ).

    Here is the text of the statute:
    “Publication” is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication.

    In sum, I suspect that there is a legal argument that “publication” is not actually happening. While I have not hashed this out yet completely, I have been working on this theory for some time now, and I believe it may be a viable argument. However, for those attorneys who troll this blog and will immediately jump on me saying “of course it is published,” step out of your box and come over to my side of the room. The view is a bit better here.

    I am merely mentioning this issue as food for thought. Anyone who wants to contribute to this legal argument, I’m more than willing to hash this out. And of course, read SJD’s article because it demonstrates the publication issue very nicely.

  9. If they were hacked, who did they call to verify it? Target, home depot, yahoo brought in expensive firms to investigate. Did the hackers steal customer data, like names credit cards, etc? Usually hackers get more than just a few films…

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