Guardaley | X-Art

A model Answer to Malibu Media’s frivolous complaint

Nicholas Ranallo is back in the game

This is terrific news. Those who started following this type of cases recently are probably curious why I’m so excited, yet those who watched the Prenda saga, know that a California attorney Nick Ranallo was instrumental in sinking the ship “Prenda.” Just read the Hansmeier deposition transcript. In addition, Nick is one of those few attorneys who actually won 17 U.S.C. §505 fees in a Bittorent case. By no means have I wanted to understate the efforts of other people who dismantled Prenda — the second most egregious Bittorent shakedown enterprise — yet since this post is about Ranallo’s Answer to one of 200+ Malibu complaints filed in California since September, I’m sure that those other people will forgive my exhilaration.

In a recent post about the 2015 California troll infestation I wrote:

One thing I am glad Ms. Erlbaum said was “they expect more pushback in ‘tech-savvy’ Northern California.” I hope for this too. There are lots of ways to fight back: lack of direct evidence, illegal porn production, “unclean hands,” questionable fee-splitting agreements, problematic copyrights — to name a few avenues. The troll fears discovery above all: Lipscomb & Co ran away from every single case where the defendant tried to pierce the shakedown enterprise.

Ranallo’s Answer is exactly what I hoped for.


The case Malibu Media v. John Doe (CAND 15-cv-04152) was conceived on 9/11/2015, and on 2/16/2016 the defendant retained Mr. Ranallo, who filed the Answer on the same day.

Like any other Answer, the first couple of pages are formal “denied, admitted, lacks sufficient knowledge” etc., but it gets interesting when we reach the “Affirmative Defenses” section.

First, we read a super-condensed yet very accurate description of the Malibu Media business model:

3. Upon information and belief, Plaintiff’s goal in filing these lawsuits is not a judgment on the merits. Rather, Plaintiff seeks to coerce a settlement from the ISP subscriber as herein without regard to whether that subscriber has actually infringed any of Plaintiff’s works.

4. Upon information and belief, Plaintiff coerces its settlements by leveraging potential embarrassment of the Defendant into monetary settlement by, inter alia, threatening to depose a Defendant’s friends, family, and neighbors, as well as by leveraging the inherent cost of federal litigation.

Yet the most interesting is a thorough enumeration of Malibu Media/X-Art’s wrongdoings, which serve the base for solid affirmative defenses (unclean hands, implied license, failure to mitigate damages etc.).


The defendant alleges the following (I touched many of these issues in the past):

  • that Judge Wright called Malibu’s business model “essentially an extortion scheme”;
  • that X-Art’s performers are extremely young, yet “Plaintiff has not met its obligations under 18 U.S.C. §2257”;
  • that many if not all of the flicks were filmed in the home of Malibu Media’s owners Colette and Brigham Field in Ventura Country, California in violation of Ventura Co. Ordinance 4452 (“Safer sex in adult industry”), which requires permits for commercial filming and mandates barrier protection;
  • that in many cases X-Art’s smut suspiciously appear on torrent sites before the release (“Upon information and belief, Plaintiff and/or its agents, employees are responsible for intentionally seeding Malibu Media’s works on BitTorrent”);
  • that Malibu fails to mitigate damages by allowing the defendant’s IP address to share the films for 2 years after the initial detection: all because “Malibu Media makes more income from suing and settling with alleged copyright infringers than it does from the licensed distribution or display of its works”; not surprising: an immediate action would jeopardize the Guardaley/Malibu gravy train;
  • that “Malibu Media fails to allege — and cannot allege from the information available to it — that a Defendant has downloaded the entire torrent file, it has failed to state a cognizable legal claim for copyright infringement of its registered work(s)”;
  • that the damages requested are unconstitutionally excessive.

As you see, those are pretty powerful allegations, and I expect to hear from Lipscomb’s crybaby hubris pretty soon — in a motion to strike the defenses. However, it is very difficult to confront easily verifiable facts with a pure table pounding. The second most probable development would be an attempt to cut and run (a walk-away offer). I will definitely watch this case and report on the developments.

Updates

2/29/2016

On 2/26/2016 Nick Ranallo took another client (CAND 15-cv-04243) and answered the complaint on the same day.

3/1/2016

It didn’t take long for the disturbed vermin nest to react: today the Miami Troll Center moved to strike each and every affirmative defense. Surprise, surprise.

In the meantime, Nick Ranallo was hired by yet another two victims (CAND 15-cv-04443 and CAND 15-cv-04175).

3/3/2016

Today a joint case management report was filed in this and other cases hadled by Ranallo. Pretty mundane stuff. I, however, want to make two notes:

  1. The trolls have officially lost their minds. There is an explicit demand of 5.25 million dollars from the defendant (35 “works” times 150K). That’s more than a half of X-Art’s declared 2013 income.
  2. The following paragraph is music to my ears. I repeat again and again: the best way to win or at least to scare the bully away is to aggressively pursue discovery. X-Art, Lipscomb and the Germans have a lot to hide.

     

    Defendant intends to take discovery regarding the basis of Plaintiff’s claims and the full gamut of its affirmative defenses, including Plaintiff’s record-keeping compliance, compliance with applicable laws governing the production of pornography. Defendant likewise intends to take discovery regarding Plaintiff’s claims of ownership of the subject works. Plaintiff intends to depose Brigham and Colette Field, Plaintiff’s agents responsible for the collection and monitoring of IP addresses, and such other individuals as are identified in response to written discovery. Defendant will further seek depositions of the PMK re: the creation and distribution of the works at issue, the person(s) responsible for enforcement of the relevant rights and the PMK responsible for building the technology allegedly used to detect infringement.

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Discussion

16 responses to ‘A model Answer to Malibu Media’s frivolous complaint

  1. This is going to be a fun one to watch. Even if Doe/Ranallo are able to get (and take) a walk-away deal, the damage to Troll Lipscomb/Malibu Media/X-Art is going to be done. I’m sure if Malibu Media goes ahead with Discovery, Ranallo will do the same. This is something Troll Lipscomb, Collette, and the German monitoring firm does not want. We saw how well the deposition of Paul Hansmeier/Prenda went. Collette, do you want a chance??? We know you don’t. I really got a kick out of the Prenda/Judge Wright reference in the answer. Of course Troll Lipscomb will try to strike the various defenses. Good luck! Maybe go back to Cali wasn’t the brightest idea. What drove you??? The number of BT users in the State??? GREED…

    As far as the amended complaint goes, I find it extremely interesting that the period of infringement is 23 July 2013 – 15 July 2015 – Approx. 2 years, for the same IP address. I find it “possible” that a COMCAST subscriber had the same IP address for 2 years, but I certainly would verify this. I would also look into the subpoena that Troll/Malibu Media sent to COMCAST. WHAT exactly did they ask for and WHAT did COMCAST provide? How far does COMCAST keep IP logs for? If the logs only go back 1 year, then there is no evidence to say what subscriber had this IP address past the 1 year mark. I’m not sure if things have changed, but here is a Torrent Freak article indicating COMCAST may only keep logs for 180 days (6 months) Comcast – https://torrentfreak.com/how-long-does-your-isp-store-ip-address-logs-120629/

    “Comcast did not respond to our inquiries but has mentioned a 180 day retention policy for IP-addresses in BitTorrent-related court documents. On some occasions cases have been dismissed because logs were no longer available, meaning that alleged infringers could not be identified.

    The 180 day policy is also mentioned in the Comcast Law Enforcement Handbook that leaked in 2007. ” – http://www.scribd.com/doc/98462086/Comcast-Spy

    If it only goes back 180 days, that will likely drop the number of movies from 35 down to 9.

    As SJD said, this will one to watch.

    DTD 🙂

    • I’m very curious about the Comcast retention policy issue as well. You can find the latest version of the Handbook PDF online and it still says 180 days too.

      Some claim that there are ISPs who have an indefinite IP database for “Serial Infringers.” I’m wondering if Comcast is one of them or not.

    • http://www.comcast.com/~/Media/403EEED5AE6F46118DDBC5F8BC436030.ashx

      Comcast currently maintains its dynamic IP address log files for a period of 180 days. If asked to make an identification based upon a dynamic IP address that was used more than 180 days prior to receipt of the request, Comcast will not have information to provide. (Note: Comcast can process preservation requests received within 180 days after the alleged date of usage as outlined in this Handbook.)

      I wonder what qualifies as a “preservation request.”? I’m assuming a subpoena…

  2. Speaking of California, it’s curious how they’re filing cases in every district except Central. Still too scared of that one, huh?

  3. I noticed with these recent Malibu cases in CA, they are usually filed within 50-60 days of the last recorded infringement. Is that the norm these days?

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