Keith Lipscomb & Malibu Media – Where Are They Going?

On 23 Mar 13, Troll Jon Hoppe, Maddox, Hoppe, Hoofnagle & Hafey, LLC, filed a written response to the Courts Memorandum/Order, case # 8:13-cv-00360, Malibu Media LLC, v. John Doe, IP address 68.50.250.243.   MM_Response_00360(MD)   This was in response to the court setting a hearing for 25 Mar 13, to address pending discovery for a group of cases.   MFR_00360(MD)   The court also stated it would allow various interested attorneys to participate as amicus curiae.  These attorneys could submit a single-spaced letter not exceeding three pages 18 Mar 13.  The following attorneys submitted briefs to the court.  Archive docket for case 8:13-cv-00360.

  • Ira Mark Siegel
  • Lawrence R. Holzman
  • Jason E. Sweet
  • John D. Sciver
  • Bart W. Huffman
  • John C. Lowe.

It will be interesting to see what comes out of this two-hour hearing.  Until then, I will go over the response Plaintiff (Malibu Media) had to this memorandum/order.  It is very telling in the direction that they are allegedly heading as far as these types of copyright infringement cases.  Keith Lipscomb’s operation is smoother than Prenda Law Inc., but that doesn’t mean there aren’t problems with it.

The first part of response was humorous, when Troll Hoppe threw Prenda Law Inc./AF Holdings LLC, and Evan Stone “under the bus” with a statement claiming they are not like the other Trolls.

Plaintiff is keenly aware that other enforcement groups have tarnished the reputation of copyright owners who sue for BitTorrent copyright infringement. Indeed, AF Holdings, LLC is currently under investigation for fraudulently using its founder, John Steele’s, gardener’s name as AF Holdings, LLC’s manger, with the gardener’s knowledge. Evan Stone was sanctioned by a District Court in Texas for sending a subpoena to an ISP after the court denied his client the right to do so except as to Doe 1 in a joined suit.

Plaintiff goes on to claim they will evaluate the actions of each alleged infringer singularly and not as part of a Mass-Doe group.  In my opinion this is in direct response to the anti-trolling community.

Malibu Media and the Lipscomb crew alleged the ISP subscriber is the infringer.  {Page 7, section b.}  They do immediately admit that it is possible, that someone other than the ISP subscriber is the offender, but downplay it as unlikely.  One reason for this view is due to the amount of movies and other media being shared by that public IP address over a “long period of time.

They go to claim that based on all the information they have collected, they are secure in their belief.

Plaintiff has provided enough factual support for it to be reasonable that the Defendant is the subscriber and the infringer. As stated above, based on the time period and abundance of infringement, causing high bandwidth usage, slow Internet speeds, DMCA notices, and other evidence of infringement taking place on the network, it is reasonable to believe the subscriber, who owns, pays for and is control of the Internet services, would not allow that activity to happen on his or her network unless he or she was committing the infringement.  {Page 9}

So Here Is Why The ISP Subscriber Is The Offender – According To Malibu Media.

  • ISP Subscriberenough said I guess
  • Large quantity of movies or other infringing files noted on the BT client that used the specific public IP address – They seem to think that only a “drive-by” short-term user of the internet connection is possible.  So much for neighbor abusing the Internet connection over a long time.
  • Long time period that movies were shared via the BT client using the specific public IP addressSame weak reasoning as above.
  • Slow Internet speedan innocent ISP subscriber wouldn’t put up with it and would do something to stop the infringing activity from occurring on their Internet connection to resume normal bandwidth.
  • The ISP subscriber would have “likely received” DMCA notices from their ISP informing them of the infringing activity {Page 8}Does Malibu Media now send DMCA take-down notices to the ISPs???  If so, that is news to me.  Note: the email addresses the DMCA notices are often sent to is the ISP email (name@comcast.net, etc.) for the ISP subscriber and NOT the one really used by the ISP subscriber (Yahoo, Hotmail, etc.).
  • Not responding to their Exculpatory Evidence request letter OR not providing a credible reason for non-infringement – Not that they are legally required to do so.  Please note that the letter is not really designed to elicit exculpatory evidence, but to seek inculpatory evidence from the ISP subscriber. 

What Do They Plan To Do?

  • Depose the ISP for records – Assume they will look for bandwidth usage, any DMCA notices, and anything else that can possibly tie to the alleged BT usage.
  • Depose Search Engine for records – Unsure of what search engines they intend to depose.  Maybe a Torrent search engine to look for searches from the ISP subscriber public IP address and terms like “X-Art movies.”
  • Depose the defendant – Did you do it?  If “NO,” who could have used your Internet connection?
  • Depose other parties that had access to the Internet connection during the time period in question.  Family, friends, guests, etc.  Did you do it?  Do you know who did it?  What did the ISP subscriber say about this.
  • Forensic examination of the ISP subscriber system.  Plaintiff stated they have an “Expert” on retainer to look at the computers.  I would love to see who their expert is.  There are good certified examiners available to do this work.  Finding evidence on a system is not very hard to do if it is present.
  • Troll Hoppe also states that this expert is in the process of preparing a report to show that IPP’s software works as it claims.  It still doesn’t mean the ISP subscriber did it.

Troll Hoppe/Lipscomb/Malibu Media claims that in these cases,

Plaintiff will prove beyond a preponderance of the evidence that the infringement was committed through the internet service reflected by the Internet Protocol Address (“IPA”) subscribed to by each John Doe Defendant. Although unlikely, Plaintiff may also substitute a person other than the ISP subscriber from whose internet service infringement took place.

And

Plaintiff’s expectation is that probably about one third of its cases will not proceed past receiving the identity of the Defendant from the ISP. This is because in some cases the ISP does not have records of an IPA because of its limited data retention. Also, in some cases a Defendant will prove to be active duty military, or unable to pay a judgment. In these cases, Plaintiff does not pursue the Defendant. Should a Defendant want to settle early in the litigation process, Plaintiff will consider any offers and may in turn propose its own settlement offer.

They make the very bold statement that IPP detection technology is 100% accurate and the process of detection is “unimpeachable.”  The ability to “detect” a public IP address is really not that impressive, as it still doesn’t equate to culpability by the ISP subscriber in any sense.  As far as the “unimpeachable” detection ability, those claims are very risky to make.  Errors do occur and to say nothing can or will go wrong is foolhardy in my opinion.  Murphy’s Law.

Troll Hoppe denies the claims that IPP Limited is actually “Guardaley” (German firm) and that their software has technology flaws (as found by the State Court of Berlin).  He states the two separate firms have no common ownership or clients, but do work with each other on occasion.

Finally, adverse counsel misstates the proceedings which took place in Berlin regarding Guardaley’s technology. The findings adverse counsel suggests were not proven in court or by a third party expert but by merely alleged by a competitor. The judgment which adverse counsel refers to is not legally binding, and most importantly Guardaley’s case has no bearing on IPP, Ltd. With each John Doe Defendant in this case, Plaintiff can provide Defendant with a packet sniffer demonstrating the piece of the BitTorrent file that the Defendant was distributing. As Plaintiff’s experts will testify, the packet sniffer and direct TCP/IP connection simply cannot be manipulated or spoofed. Put simply, the detection technology employed by IPP, Ltd. is simply not a major concern of Plaintiff’s. It is infallible and the process is not impeachable. If challenged, Plaintiff will prove these points.

Synopsis

Malibu Media appears to be going after the BT users who they believe are long-time downloaded/sharers of their movies.  They will first monitor the download/sharing over time, as well as the additional non-MM owned files being shared via BitTorrent on the public IP address.  The will most likely NOT issue any DMCA take-down notices to the ISP of the offending public IP address.  This may become an issue for them later as claims that they failed to mitigate damages to further this business model are made.  A case will be opened in the appropriate jurisdiction and request for a subpoena for ISP subscriber information will be made to the court.  Most courts are going to grant this and the subscriber information will likely be released.  Plaintiff will attempt to engage the Doe and obtain a settlement or some inculpatory evidence.  Defendants will be named and served once settlement efforts fail to work.  If an answer is filed in response to the complaint, Plaintiff will continue with some limited investigative efforts, such as a Lexus/Nexus report on the ISP subscriber, On-line searches of the ISP subscriber and other residents, and Google Earth/Maps review of the residence (distance to other residences/buildings).  Deposition of the ISP subscriber is a further possibility, along with an examination of the computer(s).  Such cases could go to a trial, but this unlikely based on past cases.  Discovery does go both ways, so Plaintiff may have to answer various interesting questions concerning their organization structure, relationship with Troll Lipscomb, and technical monitoring apparatus.  I still believe a trial is not what Plaintiff wants, as it expensive and doesn’t guarantee a return on their investment.  It is one thing to have a slam-dunk case, but if the defendant has no assets….

In my opinion, this is just a bit of fine tuning from Troll Lipscomb and Malibu Media on their cases.  Even with this tuning, it doesn’t change the fact that the public IP address they collect does not equal guilt.  More investigative effort and evidence is required to ensure they can win a case that goes to trial.

DieTrollDie :)

About John Doe (DieTrollDie)

I'm one of the many 'John Does' (200,000+ & growing in the US) who Copyright Trolls have threatened with a civil law suit unless they are paid off. What is a Copyright Troll? Check out the Electronic Frontier Foundation link - http://www.eff.org/issues/copyright-trolls
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27 Responses to Keith Lipscomb & Malibu Media – Where Are They Going?

  1. AC says:

    DTD,

    Thanks for keeping tabs on MM while Prenda is taking the spotlight right now.

    As to a couple of your points:

    “Depose Search Engine for records – Unsure of what search engines they intend to depose.”

    They actually intend to get records from Yahoo, Bing, Google, and I think ask jeeves. These were the search engines they listed in the Bellwether trial as ones they would seek records from. The response from the search engines was “Not without a court order, and the Doe’s permission” and the response from the Doe was “The scope has to be much more narrow.” But I believe at this point they have a court order and Doe permission for the search engines to release this information.

    “They do immediately admit that it is possible, that someone other than the ISP subscriber is the offender, but downplay it as unlikely.”

    I find that interesting since it has already happened TWICE in the bellwether. First, there was the $10,000 settlement, when a father (the subscriber who was sued) found out it was someone in his family. And just recently, they substituted a husband in for the subscriber wife they sued, because she’s a church goer and he built his own computer. Never mind that in the Fantalis case they claimed that the subscriber is 100% always the infringer. Guess it’s really not.

    “Plaintiff goes on to claim they will evaluate the actions of each alleged infringer singularly and not as part of a Mass-Doe group. In my opinion this is in direct response to the anti-trolling community.”

    I think this as well, and as much as I dislike trolling, this is a step in the right direction. Where we all agree with the trolls is that copyright infringement is bad, and should be stopped. What we disagree with is the methods they go about it and the ridiculous fines they impose. Carefully targeted singled Doe suits that operate within the legal system are a far cry from what we had a year ago: suing hundreds of does using esoteric “pure bill of discovery” laws in bogus swarm joinder theories.

    This is my great disappointment with the Prenda hearings; it’s not actually about the merits of the copyright troll model, but about all the purported peripheral fraud of Prenda law. Judge Wright is focused on the fraud of the court, but issue of subscriber != IP address is not at issue there, and this is still where we have a problem with MM.

    • DieTrollDie says:

      Thanks for the feedback. Here is a Bond Motion for MM in IL. http://dietrolldie.files.wordpress.com/2013/03/bond_motion_03211il.pdf It is a good example of how Plaintiff did only a very limited investigation to determine the infringer.

      DTD :)

    • Hdrew4 says:

      “This is a step in the right direction.”

      In respecting the letter of the law, it’s an improvement over Prenda style, mass doe gamesmanship.

      The letter of the law is even more destructive than Prenda’s scam. This is the law which, the very few times it’s actually been followed through on, has judged downloading 90 minutes of music as worth $700,000.

      Lipscomb didn’t come up with this much more involved and complex process to better protect copyright, or spare the innocent while only target the most harmful seeders. Malibu content is still everywhere with no attempt to take it down. Lipscomb is still pursuing old women in DC for what their tenant might have downloaded.

      Lipscomb came up with this because he realized that moving beyond threats towards actually following through on the law as it’s written will let him steal more money. A lot more money. Malibu’s single Doe settlements are in the TENS of thousands of dollars for touching a single torrent.

      Given a mark with assets, I don’t see any obstacle to Malibu demanding trial and potentially coming away with a Tenenbaum like judgement.

      Prenda’s $4,000 scams ruined peoples’ years. Lipscomb has most of the tools here to overturn peoples’ entire lives.

      Eye poppingly bad abuse like this may ultimately fix the copyright statutes. That will come from a lot of people being eye poppingly abused along the way.

      This would be an awfully bad time to be an X-Art fan.

  2. doeknob says:

    I remember reading Little Brother, a book by Corey Doctorow. In it, Doctorow writes section about tests that have 99% accuracy. And that although 99% accuracy is damn near impossible, there are still a metric crap ton of false positives.

    If they get about a million hits on a torrent (just using that because its an easy number) and their tech is only 99% accurate, that’s 10,000 false positives.

    And I highly doubt their measurements are 100% accurate, let alone 99%.

  3. Doh! says:

    If there is one lesson to be taken from all this, it’s that if you are an active duty soldier then by all means torrent all you want!

  4. jiamei says:

    I am curious about the “long period of time” comment.

    It really isn’t that difficult to force your ISP to fetch a new IP for you on a pretty regular basis, and any given ISP can randomly change your IP over a relatively short period of time.

    Furthermore, IP addresses get recycled. It is highly possible that if IP address 168.1.1.1 is assigned to person X for a month, it will be assigned to person Y the next month. By simply monitoring the same IP address of two months, you have attributed two completely people’s internet usage to a single person.

    Now, that I am typing this, I am actually curious if an ISP has ever responded to the subpoena saying that two different people were assigned this address over the alleged time of infringement, or if the ISP simply sends the notice to two different people.

    So, if they are “tracking” internet usage by IP address, I’m really not quite sure how you can even come close to definitively (or even suggesting a pattern of infringement) saying that it was a single person (subscriber) assigned to that IP address over any given period of time.

  5. that anonymous coward says:

    ” It is infallible and the process is not impeachable. If challenged, Plaintiff will prove these points.”
    Then why are you paying an ‘expert’ to vette it?
    Assumes facts not in evidence and much handwaving by the people who just want names to pursue settlements.

    Oh damn I probably hurt their feelings, think they will sue?

  6. pissed off Doe says:

    “Long time period that movies were shared via the BT client using the specific public IP address”
    I would still like to hear a legal argument on how legal this is? Monitoring someones IP address is equivalent to wiretapping, how can this type of evidence be allowed? I think this is another tactic to scare the potential doe in to paying up.

  7. MM Doe says:

    Almost all of the other groups who have litigated BitTorrent copyright infringement cases began
    their enforcement efforts by relying on long-arm jurisdiction to sue 100s or 1000s of infringers in
    one federal court suit brought in a district where the majority of the Doe Defendants did not
    reside. Neither Plaintiff nor anyone with whom it has worked has relied on federal long arm
    jurisdiction to sue Doe Defendants for copyright infringement in jurisdictions where those
    Defendants do not reside. Instead, Plaintiff has scrupulously adhered to the most stringent
    interpretations of the law as articulated by the majority of the District Courts across the country.
    And, informed Courts across the country have recognized and appreciated that Plaintiff has acted
    within the law and ethically during these cases.

    Hmmm…well, I guess a Florida Pure Bill of Discovery isn’t a FEDERAL case, but it sure meets all of the other definitions.

  8. john doe says:

    There really isn’t any wiretapping involved and anyone can do it. Anyone participating in a torrent shares their IP address with the tracker so all you have to do is connect to the same torrent with your own bittorrent client and watch who seeds and downloads.

    The more interesting question is how did they watch the torrent for an extended period of time? A torrent tracker will disconnect clients that don’t upload so if they connected with their own client they would have to have actively participated in the sharing. The other possibility would be that they used their own tracker as a honeypot to lure in people.

  9. Who Smells BS? says:

    How many pinocchios should we award Lipscomb? The guy has no shame. Up to this point, IPP’s expert has been part time university student who hope to get a full time job in the professional tennis industry. So why source supposed forensic experts off shore and outside arms reach of US law.

    Who keeps all the records forever for Lipscomb. Do ISPs and search engine supplies store records forever because Malibu Media sure takes its merry old time naming and suing anyone. I thought most of these firms dumb data after 90 days because they don’t need to store it by federal law. Any experts out there that can way in on this?

    • DOE_SCHMOE says:

      I am wondering this too. My case is nearing a year old now. MM hasn’t done anything.
      If there were any records from someone accessing my network and downloading the file (if the file being downloaded with my IP is even accurate to begin with) would they even be there any more?

      I have no problem with them wanting to defend their copyright. I think they should just be going through all these steps once they open the cases. I wonder if maybe they will start to do that now? Or is it still just all scare tactics? Are the single doe cases going to be worthwhile? Didn’t the RIAA lose money when they started doing that?

      • thatbalddude says:

        I think routers and modems dump their logs every thirty days, so any information they wanted has likely been lost. They probably know that and are relying on your (hopeful) computer illiteracy and the fear of having a big, bad lawyer coming after you to make you cave.
        The majority of what they’re doing is scare tactics, and as to whether or not the single Doe cases will be worthwhile will depend on how well they do any investigations OR if they can make a Doe slip up and incriminate himself. They got some money in their war chest through settlements to fuel their troll machine for a bit; now they have to be more selective in their targets, such as whether anyone has sufficient assets, a lawyer to defend themselves, or whatever. They’ll likely send you an exculpatory letter if they haven’t already, which is your indicator that they’re fishing for new targets. Until then, just sit tight and relax.
        I’m not a lawyer and don’t even play one on TV, so take my advice for what it’s worth. I’m basing this on what I’ve seen these schmucks try with me so far. I got my “please incriminate yourself” letter and mailed back a Richard Pryor Response about a month back and haven’t heard anything yet, but I fully expect the trolls to come after me and you and anyone else with drawn knives and dishonorable intentions. My advice to everyone is to expect underhandedness, deceit, and intimidation. I doubt you’ll be disappointed!

      • DieTrollDie says:

        We still have some multi-Does cases open in various locations. These smaller numbers multi-Does cases appeared to have stopped as of 19 Dec 12 (http://www.rfcexpress.com/lawsuits/copyright-lawsuits/new-jersey-district-court/136701/malibu-media-llc-v-john-does-1-18/summary/). After that date, the MM cases all appear to be for “John Doe” or “John Doe subscriber assigned IP address xxx.xx.xx.xxx” Here is a recent document in which a NJ court severed all Does except for Doe #1 (http://dietrolldie.files.wordpress.com/2013/03/order_granting_sever___dismiss_all_but_doe_1_nj_malibu_media_12-cv-06945.pdf). It appears they are trying to limit their cases to those Does who they have observed using BT to share Plaintiff’s movie over a long period – usually a couple months. IMO, these cases are still primarily about generating a settlement via a threat to take you to court. Even if 70% of the people they file cases against are the actual infringer, the remaining 30% (innocent) receive the same threats to settle or risk financial ruin and embarrassment. There belief that the ISP subscriber is the infringer – due to the extensive amount of movies/files being shared on BT over a long time period, is weak. It still requires an investigation to have any chance of developing real evidence.

        DTD :)

    • I Love the smell of BS (Napalm) in the morning says:

      Remember according to the Declaration Tobias Fieser’s Functional Description of IPP International
      IPTRACKER v1.2.1 it states on page 7 last sentence under 3.1 Protection of Data Privacy and Data Security “The data can only be decoded and used by the responsible lawyer, only his software
      contains the deciphering method and this one in this case also secret (called “public”) key.”
      The question is does this refer to the actual software IPTRACKER v1.2.1 or just his email messages from Tobias Fieser’s at IPP International ?

  10. Easter Basket surprise! - "We’ll get by with a little from our friends" says:

    “We’ll get by with a little from our friends”

    Comments – doePissedOff at 2013-03-13 01:18 CET:
    WARNING TO ALL: If you reside in US and do not use any kind of VPN, you are being tracked by X Art Studio.
    X ART VIDEOS ARE OWNED BY MALIBU MEDIA, A NOTORIOUS COPYRIGHT TROLL THAT IS CURRENT SUING THOUSANDS OF AMERICANS IN FEDERAL COURTS.
    ALL X ART TORRENTS ARE TRACKED BY TROLLS(AND MOST LIKELY UPLOADED AND SHARED BY THEM) AND DATA IS COLLECTED BY AN NOTORIOUS TROLL MICHAEL K LIPSCOMB, AN ATTORNEY OUT OF MIAMI.
    PLEASE DO NOT ATTEMPT TO DOWNLOAD ANY VIDEOS FROM THAT STUDIO, GOOGLE MALIBU MEDIA LAWSUITS.

    (http://webcache.googleusercontent.com/search?q=cache:wVN-AvLXr4sJ:thepiratebay.se/torrent/8244985/+&cd=8&hl=en&ct=clnk&gl=us&client=firefox-a (This is Google’s cache of http://thepiratebay.se/torrent/8244985/. It is a snapshot of the page as it appeared on Mar 23, 2013 05:14:06 GMT.) ***NOT INTENDED FOR VIEWERS UNDER 18 YEARS OLD***

    Google Search Results – (https://www.google.com/search?q=x-rt+malibu+media+do+not+download&ie=utf-8&oe=utf-8&aq=t&rls=org.mozilla:en-US:official&client=firefox-a#hl=en&gs_rn=7&gs_ri=psy-ab&pq=x-art%20malibu%20media%20do%20not%20download&cp=83&gs_id=m&xhr=t&q=DO%20NOT%20ATTEMPT%20TO%20DOWNLOAD%20ANY%20VIDEOS%20FROM%20THAT%20STUDIO%2C%20GOOGLE%20MALIBU%20MEDIA%20LAWSUIT&es_nrs=true&pf=p&client=firefox-a&rls=org.mozilla:en-US%3Aofficial&sclient=psy-ab&oq=DO+NOT+ATTEMPT+TO+DOWNLOAD+ANY+VIDEOS+FROM+THAT+STUDIO,+GOOGLE+MALIBU+MEDIA+LAWSUIT&gs_l=&pbx=1&bav=on.2,or.r_qf.&bvm=bv.44442042,d.eWU&fp=aa7899e64e1d28d6&biw=1920&bih=845)

  11. pissed Off doe says:

    30 more cases filed in MI, rfc has total of 600 malibu cases logged. When will the madness end?

    • DieTrollDie says:

      Not likely in the immediate future. I expect Lipscomb is preparing for various filings once the Prenda debacle plays out. He expects whats happens to Prenda to be mentioned in various filing in his cases. He will try to distance himself from the fallout and show that courts that he is “different” from those of lesser morals. We have already seen claims that their forensic expert is preparing a paper on the software they use, as well as its unfailing accuracy. The move to the single Doe cases was not by their choice, but Lipscomb apparently still feels there is money to be made. The PA Bell weather case may bring out some additional details on the operation, but I expect settling with the defendants would be a greater benefit to them.

      DTD :)

  12. "Adult film company sues Naples 'John Doe' for stealing porn" - Guess who? says:
  13. Brigham & Colette Field - Lipscomb - Lipscomb, Baker & Eisenberg P.L- Malibu Media LLC & Streisand effect says:

    does Lipscomb think the Courts & community have been distracted by Steele’s/Prenda & goons ?

    http://dockets.justia.com/search?query=Malibu+Media%2C+LLC+

    Cases filed matching “Malibu Media, LLC ”
    Display as Search Results
    Cases 1 – 20 of 701

    “Insanity: doing the same thing over and over again and expecting different results.”

    ~Albert Einstein

  14. John Doe says:

    Malibu Media now has over 75 new individual doe cases open in Colorado, with exactly 0 proceeding to trial, according to RFC Express.

  15. John Doe says:

    I just got my Comcast notice regarding the individual lawsuit that has been filed against me by Mary Schultz in Illinois.

    • anodoe says:

      Check the actual complaint with exhibits on http://www.docketalarm.com or other source. Most interesting papers are Copyrights-in-Suit (Exhibit B, counts of infringement) and Expanded Surveillance (Exhibit C, list of what else was downloaded by the IP in question). After that you might want to talk to a lawyer.

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