Guardaley | X-Art

Malibu Media drops the case after its expert found dozens of X-Art videos on defendant’s hard drive

The majority of Malibu Media / X-Art shakedown cases end in early stages — either because a defendant succumbs to FUD and pays the ransom, or Libscomb / Malibu drop a case after learning that the defendant is of modest financial means, thus not much blood could be squeezed from the proverbial turnip. Yet a small percentage of cases progress beyond the initial stage and enter the discovery phase. As a rule, only few defendants pursue their side of the discovery avenue aggressively (which is unfortunate: requests for admissible evidence of file-sharing or threats to request X-Art’s 2257 records almost universally result either in a dismissal or an attempt to cut and run). On the contrary, Lipscomb is very demanding in his requests, which normally results in defendants’ hard drives being imaged and sent to Malibu’s expert Patrick Page for examination.

Patrick Paige

In Malibu Media v John Doe (NJD 2:12-cv-8506), the expert discovered dozens of X-Art’s films on the defendant’s hard drive, as well as an abundant evidence of Bittorrent use. Nonetheless, Paige didn’t find this fact sufficient to conclude that the defendant is the infringer (emphasis is original):

[…] to explain, the movie files could be put onto the examined hard drives by the defendant’s friend or family member, who had a valid X-Art subscription, or by the defendant’s foes, who successfully plotted to set him up. […] In my 30 years of experience as a forensic specialist, I never saw evidence so abundant. Every criminal made at least modest effort to cover his tracks. Consequently, I believe there is a catch here. In other words, the presence of every film listed in the Exhibit B to the Complaint is too good to be true.


I know you shake your head in disbelief, so did I. Nonetheless, after giving it a thought, I concluded that this seemingly counter-intuitive recommendation is not unreasonable. As a matter of fact, Paige is being very consistent here. In Malibu Media v. Jesse Raleigh (MIWD 13-cv-00360), the expert found neither X-Art smut nor evidence of spoliation on any of the defendant’s storage devices (even a USB monitor came out clean). However, from Malibu’s perspective, it is not a proof of innocence by any stretch. In his 3/11/2016 declaration, Patrick Paige said (emphasis is original):

7. Accordingly, just because the movie files were not located on the hard drives I examined does not mean that the movies never existed on the hard drives examined or do not exist on an unproduced hard drive.

So, I’m sure that now you will agree with me: if the absence of allegedly infringed material is not a proof of innocence, it is only logical to conclude that the presence of movies in question on a defendant’s hard drive is not a proof of guilt.


The case against the lucky Doe was dismissed the next day, yet without prejudice. There are two possible reasons for that: first, dismissing with prejudice would open the troll to the defendant’s motion for attorney fees and costs; second, I believe that Malibu’s attorneys still doubt this Doe’s innocence, and may re-file a lawsuit against him, if some solid evidence of infringement (such as a Facebook ‘like’ of a popular song) surfaces.

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Discussion

12 responses to ‘Malibu Media drops the case after its expert found dozens of X-Art videos on defendant’s hard drive

  1. whaaat?

    Jeffrey Antonelli Antonelli Law Ltd. 35 East Wacker Drive Suite 1875 Chicago, IL 60601

    Tel 312-201-8310

    Antonelli-Law.com Practice concentrated in drone/UAS, complex civil litigation, and business advice ________________________________

  2. Okay, that’s pretty hilarious….”he’s so guilty there’s no way he could be guilty!” I mean–it’s great news and all, but this has to be the worst nerve they’ve hit yet. I would love to have seen Libscomb’s face when he found out about this ruling.

  3. Well, it would be a brilliant strategy to settle a suit headed to a losing trial…settlements make money…trials don’t, and they damage the trolling operation.

  4. So after all the huff and puff about how the court must, simply must allow cases against innocent people to go ahead because of how much damage their not-downloading is causing the sophisticated pornography industry…

    Brigham and Colette find damning evidence of a guy who fits the exact bill of someone who, according to their logic, is singlehandedly ruining their business… and they decide to drop the case.

    Am I missing something here? Did Brigham and Colette just get handed a lifeline, only to let go of it and run like they were given the bubonic plague? What must be going through their heads? “This pirate seems to piratey to be true; must be a trap laid by the filthy, disgusting Internet Hate Group! Run away!”

  5. 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 transmittance; … .

    § 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 privileged 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.

    PPS….. my apologies to SJD and anyone else who notices the above post is a ‘repeat’……yes, but IMHO the word needs to get out on the actions of these extortionist enterprises, and all due encouragement needs to happen to get the DOJ to take proper action.

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