Guardaley | X-Art
Copyright trolls hit a new low: Keith Lipscomb wants to depose defendant’s teenage daughter in a porn case
This time the German Mafia and its agents crossed yet another line in their quest towards the bottom of the ethical abyss.
Malibu Media v Curt Vandenheuvel (FLMD 13-cv-01579) is an eventful case. Initially the defendant represented himself, but later wisely lawyered up (Charles Douglas and Joshua Cossey of Douglas & Hedstrom, Jacksonville). Since Malibu Media / Guardaley lawsuits are pure bluff, which is based on recording less-than-a-second-long Bittorent transactions, the trolls rely on court-approved fishing expeditions — examining defendants’ hard drives in a hope to find traces of X-Art’s “barely legal” porn and/or some indicators of evidence spoliation.
There is a plethora of instances when no defendant’s wrongdoing was evinced. Nonetheless, Lipscomb’s enormous greed and hubris didn’t permit ending those cases gracefully. For example, in Malibu Media v. Jesse Raleigh (MIWD 13-cv-00360), Malibu lawyers resorted to cropping pictures and claiming that a standalone monitor could be used for torrenting.
The instant case is one of such cases: Malibu’s expert Patrick Paige didn’t find any of X-Art’s pornography. Nonetheless, the pressure continued.
A subpoena to Comcast revealed that the defendant’s ISP had sent 270 DMCA infringement notices to the defendant, so I understand why Lipscomb aggressively pursues this case. However, there are certain ethical limits that even a most aggressive attorney should mind.
The expertise discovered traces of Bittorent activity (music, TV shows) allegedly by defendant’s daughter. And the troll wanted to depose her.
The problem is that Amber (the daughter) is young, very young. She is 18 now, yet at the time of the alleged infringement she was a minor — 16. Let me remind you that it is a hardcore pornography case: what questions do you think our Biblical scholar would ask her? “Did you ever witness your father masturbating to X-Art’s porn?” “What kind of porn do you prefer yourself?” I wouldn’t bet that our purported officers of the court didn’t consider such questions. I wouldn’t even bet if those lost souls understood why this development angers me (and I’m sure you too).
In an email sent to the defense on January 6, 2016, the troll implicitly suggested that Amber (again, 16 years old at that time) is a suspect:
As a resident of your client’s household and user of the computers and internet that were used to commit the infringement, Amber has information that is relevant to this case. This is especially so in light of the fact that your client denies having personally committed the infringement and your representation that he will not stipulate that she did not commit the infringement because “he has no certain knowledge regarding” the same. As such, the deposition is proper and we will oppose your motion(s).
On 1/18/2016 the defendant filed a motion to quash the deposition subpoena and for a protective order, which told an even more gruesome story:
4. Defendant’s counsel also express that such testimony was pointless, improper, and only designed to humiliate the Defendant.
5. On or about November 10, 2015, AMBER received notice with her family that she has advanced Type I Diabetes, with substantial pancreatic failure.
6. AMBER is presently being treated […].
7. The treatment has serious physical and psychological side effects, leaving AMBER in pain throughout the day.
8. Equally disconcerting is why Plaintiff found it necessary to depose Defendant’s daughter, who would have been only sixteen (16) at the time of the alleged infringement, regarding a case of alleged porn sharing, and not Defendant’s wife or son.
Not surprisingly, the troll doubled down. Malibu filed an opposition arguing why harassing a minor is justified:
Plaintiff’s additional evidence list ties Defendant’s IP address to BitTorrent infringement of numerous third party works. Many of the third party infringements correlate with Defendant’s daughter’s Facebook “likes” including but not limited to: “Drake,” “American Dad,” “Arrested Development,” “Community,” “Doctor Who,” “Family Guy,” “Futurama,” “Modern Family,” “The Big Bang Theory,” “Lana Del Ray,” and “Trey Songz.” There are approximately one hundred (100) files on Plaintiff’s additional evidence list that correlate to Defendant’s daughter.
I don’t know if it is against the law to surveil a minor without parents’ consent — in any case it is just plain wrong. Grossly wrong.
Fortunately, the judge quashed the deposition subpoena on 1/19 and took the protective order (“preventing Plaintiff from […] harassing Defendant’s Daughter […]”) under advisement.
Yet Keith Lipscomb and Daniel Shatz continue pressing for a deposition: on 2/17 they filed “additional evidence”:
[…] Plaintiff is attempting to depose Amber to ascertain the extent of her involvement in the at-issue copyright infringement, and has moved for leave to amend its complaint in order to add a count against Defendant for contributory infringement.
I really hope that Judge Barksdale puts an end to this travesty.
So, what’s next, Messrs. Lipscomb and Schatz? Deposing Amber’s former schoolmates and teachers? Polygraph-testing neighbor’s kids? I, to be honest, don’t rule out anything anymore.
Updates
2/24/2016
Yesterday the defendant fired back. Particularly, he claimed that
A review of notices reveals that Comcast was noticed with 381 alleged violations. However, 350 of these are duplicates of the same six (6) files, in many cases with the same ID numbers and exactly the same timestamp. It appears here that the culprit is an IP tracking outfit by the name of Rightscorp. The tracking software that Rightscorp uses is obviously fatally flawed, and there the alleged violations sent to Comcast are highly suspect.
It gave me a chuckle: one shakedown outfit (Guardaley) that uses unverified, flawed tracking software makes an argument based on another shakedown outfit (Rightscorp), whose software is so reliable that Rightsorp destroyed the source code despite the duty to preserve evidence in BMG & Round Hill v. Cox Communications.
The following is also of interest:
[…] of the Expert’s opinion is relying on Mr. Pratzer [sic]. When Defendant sought to depose Mr. Prazter, Plaintiff’s counsel refused to disclose his location, refused to provide photo identification, and when the deposition was postponed to such circumstances, Mr. Prazter became unavailable for the entire months of February and March due to “traveling abroad.”
I would be surprised if I found out that Patzer is as real as Darren Griffin.
Yet the crux of the defendant’s opposition cannot be simper: the plaintiff’s expert found no X-Art pornography and no evidence of spoliation. Anything else is a fishing expedition and an inhuman, despicable attempt to leverage parental love.
2/25/2016
While I quoted Malibu saying that it “has moved for leave to amend its complaint in order to add a count against Defendant for contributory infringement,” I didn’t elaborate. In fact, it’s new and troubling tactic of keeping a non-provable case on life support. This addition to Malibu’s bag of dirty tricks (accusation of spoliation and perjury, deposing neighbors etc.) should be noted (and certainly fought against). The troll indeed moved to amend the complaint in order to add a claim of contributory infringement. In defendant’s words,
The Plaintiff contend that Defendant’s was a contributory infringer, under the premise that Defendant had knowledge through DMCA notices that went to a Comcast email account assigned to Defendant, who allegedly never took action to prevent or mitigate the infringement.
Defendant’s attorneys did a good job today opposing this new sleaze:
Given the unique nature of this case, and the parties associated with same, the Motion for Leave to Amend asks this Court to essentially hit reset, allowing Plaintiff to take another bit at the apple in hope of pinning some culpability to the IP Address allegedly used for downloading Plaintiff’s content. In addition to being highly prejudicial, it fails to present to articulate whose infringement the Defendant contributed to (an indispensable party). The recitation of the record provided as a justification for such gaping holes in the pleading is that it must have been someone around the house for an extended period of time, by process of elimination. Such logic is presented in the absence of any proof associating the geotargeted IP address with anyone in Plaintiff’s family, and connecting the possible of use of BitTorrent technology with the infringement alleged by Plaintiff.
3/9/2016
The judge didn’t put an end to this travesty: today she allowed the deposition of the defendant’s daughter. Judge’s naïvity is depressing:
There is no evidence suggesting the plaintiff is seeking to depose her for an untoward purpose.
The following “restrictions” are essentially a green light for asking the teen anything: Lipscomb and his minions are infamous for violating explicit court orders, so the troll probably scoffing at the vagueness of these “safeguards.”
The defendant’s daughter must provide herself for a deposition in Gainesville lasting no longer than 90 minutes. […] The plaintiff’s counsel must proceed with the utmost discretion and sensitivity, beginning with questions relating to computer use generally and progressing to more specific questions only if necessary.
3/15/2016
Today the defense asked the judge to reconsider her order and substitute an in-person deposition of the ill teenager with a written one:
In the Court’s wisdom, in light of Amber’s condition and potential for embarrassment / harassment, the Court appropriately limited the deposition to 90 minutes. A written deposition would ensure that Plaintiff is able to present all appropriate questions, without complications resulting from breaks associated with Amber’s condition. An important distinction (or clarification) is that a major shift in Amber’s blood levels or activation of her CGM may not require just a break from Amber’s questioning, but force Amber to withdraw from further questioning, resulting in a rescheduling. If there are fluctuations, it will force her to take medication that will impair her ability to respond to the questions, and create discomfort, nausea, etc… A written deposition would circumvent that risk, by allowing the deponent to proceed at her own pace, as her medications and conditions dictate.
The motion was necessary because Messrs Lipscomb and Shatz once again demonstrated a total absence of dignity (emphasis is mine):
I hereby certify that, I conferred with counsel for Plaintiff, and addressed the basis for this motion, wherein opposing counsel did not consent to the requested relief to supplement the oral deposition with a written deposition. Counsel for each of the parties could not agree on the matter or merits related to same.
Fight © Trolls 
They found no evidence of the material they are suing over, the case should be done.
Allowing them to proceed based on a single snapshot of evidence is disturbing enough, but listening to all of this alleged extra evidence is beyond the pale.
We can not prove that the only material at issue in this case was ever on these machines. Why they are allowed any further fishing trips is baffling. Courts allowing them to keep looking for what is not there, trying to find anything that can be leveraged to get a settlement or sanctions… for material they can not prove was ever there.
Lippy & Co have no interest in any other material they allege was downloaded and merely point to it to draw attention away from the simple truth…
THEY CAN’T FIND THE MATERIAL THEY ARE SUING OVER ON THE MACHINES.
Can’t find the material, have the expert claim it was hidden.
Can’t find the material, make allegations about facts not part of the case.
Can’t find the material, harass the target with depositions & motions designed to waste time, money & sanity fighting against those who are unable to prove their case but refuse to let go until they are paid or a court finally says enough… and then they walk away leaving the costs & burdens on those they targeted denying them compensation for this invasion of their life based on a blink of a computer.
Refuse to admit they could have been wrong, allege more wrongdoing, and dismiss without prejudice so no one can make them pay for failing to prove any allegations in court.
Why do courts allow them to keep digging into peoples lives well outside of the allegations looking for any possible leverage point after it is clear they have failed to prove the allegations?
It really is hard to find words appropriate to the sheer shittiness of this action. By that I mean I already thought these arseholes were as thuggish and vindictive as they could get. It’s like learning Dante was wrong, and that there was a secret trapdoor to levels 8+
Once again when no evidence of Malibu’s works are found, the trolls want to trot out their “additional evidence” file. Someone wants to avoid getting hit with costs out of this mess.
The trolls are only concerned with coming out of the case with cash. I am starting to lose count of the cases were no Malibu works were found on a defendants devices, and the trolls claimed spoliation or devices not turned over etc etc etc.
What we are really seeing here is the desperation by the trolls to keep hat easy settlement cash coming in that they are so addicted to, this isn’t about copyright, we all know it is more revenue generation through the guise of copyright enforcement.
Karma will make it around to the trolls, it did to Steele, Duffy and Hansmeier as well and we all see how things have gone for them since.
270 notices? Dang!
In your research of these cases, how many notices are usually mentioned?
How many Plaintiff files are claimed on average?
See the update: the defendant explains that the majority of those notices were duplicative claims from Rightscorp. He calculates that there were probably more than 36 distinct titles. In any case it’s irrelevant: a proverbial table pounding when the troll doesn’t have any evidence related to its pornography.
Lipscomb isn’t new to hysterically inflating numbers. Look at Malibu Media v. Pelizzo (footnote):
Ahh I see. Super sneaky.
That said, I’m still curious how many titles Malibu generally sues for. Is there an average amount or does it vary too much to say?
At least 20, can be as many as 60. Since the courts increasingly rule the minimum — $750 per work — suing for less isn’t lucrative. Saying that, a lot of reports of hiding the ball. I.e. when a victim approaches for a settlement talk, the troll say “there is actually more.” Pure bluff, but since they do that, there are enough shitless scared people who succumb.
Wasn’t it only 6 titles in the Raleigh case, or is there something I’m missing? Are there other cases with that few number of titles alleged that you know of?
I’m sure there are many cases with only a handful of titles, especially filed a couple of years ago — until judges generally started gravitating toward minimum statutory damages. Yet I’m unprepared to provide examples. Maybe will look up over the weekend.
Thanks for the good work you do on this site.
Thank you.
I’ve seen suits with as few as 14 titles and as many as 127 titles (“X-Art Unauthorized Pack #89).
As RightsCorps super secret tech is currently being litigated still, and they destroyed evidence attempting to hide how it works it shouldn’t be given any more weight than a random person on the street shouting that they are Jesus.
I can claim they do horrible things to stuffed animals, stating it 500 times in 10 minutes doesn’t prove that claim is true or add any more weight to the claim does it? As the RightsCorps notices are “SO GOOD” that they rarely pursue filing an actual legal case after blanketing a target with them, perhaps the lack of faith in their system should be noted. If your evidence is enough to open the door to multiple thousands of dollars in awards & fees… why do you take $30?
Trolls don’t care about morals or even people for that matter. They are nothing but parasitic companies that serve nobody but themselves. They use broken copyright laws to siphon money where ever possible. Ironic how copyright holders call pirates “thieves” when these guys are allowed to run amok pilfering money from people through intimidation tactics and bogus lawsuits that can potentially ruin lives in the process.
I smile brightly every time I read about a troll operation being shut down or rejected in court. I look forward to the day when all of them are globally banned once and for all. In the meantime, ignore them and they will go away. Treat their threats like the filthy legal trap they are.
Perhaps the Judge misunderstood –
There is no evidence of the materials at question of this case.
There is no evidence that the evidence was spoiled.
The allegations at the heart of this case have been disproved.
So why allow them to badger an 18 yr old on facts from 2 years ago.
Can the Judge recite exactly EVERYTHING they did for 2 weeks 2 years ago perfectly?
This is allowing them to make a spoliation fishing trip.
The content was never there as their own expert has shown.
This is a case about direct copyright infringement and they failed so lets expand the liability claims.
Running an attack on a family who is dealing with medical issues, forcing them to decide if medical care of legal bills are more important. Can just imagine that this Judge will let MM slip away without prejudice to inflict that extra screw you on the target.
We trashed your name, we cost you money defending yourself, we turned your life upside down, we stressed out your ill child, and never proved anything we claimed… enjoy paying your own bills because we get to slip away like the thieves in the night we are. You should have just paid up because courts are to stupid to question why we keep accusing others in the house after having named the wrong party in the lawsuit to begin with.
Dear U.S. Attorney’s and Department of Justice,
I’ve read that the D.O.J. has ongoing interest in these blogs. Good. Welcome. Lets get to work.
I realize you should already have and know most of this, but I thought I’d provide a little extra emphasis and encouragement by quoting the information below, putting the activities of these copyright terrorists and extortion trolls, along with their foreign and domestic co-conspirators, in proper perspective:
18 U.S. Code, Chapter 96 – RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS § 1961–1968
§1961 – Definitions
(1) “racketeering activity” means (A) any act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, EXTORTION (emphasis added), DEALING IN OBSCENE MATERIAL (emphasis added), or dealing in a controlled substance or listed chemical …. ; (B) any act which is indictable under any of the following provisions of title 18, USC : …. section 1951-extortion; section 1952-racketeering; section 1956-money laundering; section 1957-monetary transactions from unlawful activity; section 1960-illegal money transmitance; … .
§ 1962 – Prohibited activities
(a) It shall be unlawful for any person who has received any income derived, directly or indirectly, from a pattern of racketeering activity …….
(b) It shall be unlawful for any person through a pattern of racketeering activity or through collection of an unlawful debt to acquire or maintain, directly or indirectly, any interest in or control of any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce.
(c) It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt.
(d) It shall be unlawful for any person to conspire to violate any of the provisions of subsection (a), (b), or (c) of this section.
§ 1963 – Criminal penalties
§ 1964 – Civil remedies
§ 1965 – Venue and Process
§ 1966 – Expedition of Actions
My opinion is that the US Attorneys should have more than enough ammunition and evidence to go after these domestic courtroom terrorists, cleaning-up the copyright-extortion troll shitpile, and especially the largest contributor and biggest turds riding the wretch-worthy waves of the copyright-troll cesspool, Keith Lipscomb and Malibu Media. These scum are economic terrorists, running what I think can be proved to be a RICO-designated extortion organization. I look forward to your prosecutorial involvement in ridding the American public and the Federal Court system of the foul stench of their extra-judicial copyright actions. Please put an end to their extortionate ‘enforcement’ activities.
Extortion is a criminal act, no matter how loud these extortion trolls protest, or how artfully the trolls try to disguise their activities by covering them with self-serving legalese. These trolls employ deception, half-truths, and lack of full and truthful disclosure in many of their statements and filings. These include:
1. filing legal actions, and sworn statements in support of those legal actions, despite knowing, and now finally admitting on the record in one of their latest cases (ohsd-14-cv-00821), that they do not have possession or control of, and cannot even produce for the court or defendants, the most basic evidence the troll based its court filings upon. This is fraud and perjury, plain and simple. And its happened thousands of times now…across state lines and diverse court jurisdictions, in literally any and every action they have brought to federal district courts claiming copyright violation.
2. knowingly filing legal briefs with deceptive descriptions and half-truths on bittorent use/purpose and on identifying victims/defendants using only an IP address, all meant only to obtain “prior to rule 26f conference” subpoena’s, thereby denying due-process to all ultimate defendants.
3. seeding its own so-called ‘films’ to bittorrent even prior to public availability, entrapping potential alleged infringers that trolls can then extort money from.
4. lack of substantive DMCA process use, demonstrating clearly a failure to even attempt to mitigate any alleged economic damage they claim.
5. so-called expert testimony/reports/support from biased bought-and-paid-for (sometimes illegally contracted…) “experts” that lack standing and qualification as expert witnesses.
6. lack of any effort going after initial torrent file seeders.
7. producing much of their porn illegally in Ventura county CA, knowingly negating any legal rights to copyright and later legal action. Porn/obscene material cannot be properly copyrighted anyway.
8. use of unlicensed and foreign private investigators, in violation of state law and statutes.
9. failure to inform courts of, and failure to make available to opposing counsel, the unproven and unsubstantiated ‘proprietary software’ that the extortion operation relies upon to find alleged infringers, and possible manufacture of ‘evidence’ of alleged infringement.
10. aggressively employing subterfuge and outright fraud in hiding ‘evidence’, evidence sources, software relied upon, trial experts, foreign actors, APMC involvement in illegally directing lawsuit activity in the US, false depositions utilizing non-experts…..they fight any legitimate examination and dissemination of their evidence and activity by any court or defense counsel.
11. cut-and-run action when confronted with trial-based outcomes, to avoid properly paying their extortion victims defense costs, costs that the trolls have saddled extortion victims with in order to defend themselves from baseless and frivolous lawsuits.
12. surveillance, recording, and intercepting private and priveleged communications that likely violate terms of one or all of the ECPA, CFAA, SCA, and WFA federal acts/statutes.
These above actions, in some circumstances individually, and especially when considered in total, results in coordinated-enterprise extortion activities. These trolls are victimizing many unwitting and sometimes unrepresented defendants when victims are hit with unjust subpoenas (again, obtained through deceptive initial filings) and then unjust settlement demands. This extortion activity is solely meant to unjustly and illegally enrich the copyright troll, again primarily Malibu Media and its morally and ethically challenged dumbass lawyer(s), led by Keith Lipscomb. All of the above demonstrates that this IS NOT about legitimate copyright enforcement action at all, but solely about trying to game the courts and obtain money with extortion-tainted “settlements”, no matter how much the copyright/extortion trolls protest and attempt to cover-up the reality of their behavior.
IMHO every involved law firm principle, clerk, and associate involved in these lawsuits, and the owners of the porn company itself, should be pursued, individually and collectively, and prosecuted accordingly. By law any and all proceeds are ill-gotten gains, and any resulting investments and proceeds from their extortion activity should be recovered and returned to the troll’s victims and the court system. All principle extortion actors involved in this process should be prosecuted, fined, and incarcerated.
Go get them D.O.J. The copyright terrorists actions, and we the aggrieved American public, deserve no less.
Edmund Jennings Randolph
PS.. Anyone else interested in looking into the illegality of these extortion trolls questionable actions should take the time to read the entire 18 USC, chapter 96, especially §1964(c) for those individuals having already been extorted from or under current judicial process from these extortionist trolls. It fits trolls to a ‘t’. Hit back hard…..these extortionists deserve it.