I decided to go over a recent Malibu Media preliminary witness and exhibit list. The document is for case 1:12-cv-01115, Southern District of Indiana. Archive Docket This is one of earlier Malibu Media mass-Doe cases (9 Does), filed on 14 Aug 12. There has been two defaults on this case, but final judgement will not be issued until ALL the claims are resolved. Note: The magistrate judge recommended that for these defaults, $38,995 ($36K statutory damages & $2,995 fees/costs) be the award to Plaintiff against each Defendant.
The Witness/Exhibits list is specifically for Malibu Media, but it could easily be cannibalized by other Trolls. I personally believe that for the foreseeable future, Troll Lipscomb/Malibu Media will be the only ones going this far – and only on a limited basis.
On 12 Nov 13, Troll Paul Nicoletti, filed the preliminary witness and exhibit list with the court. Prelim_List_01115(IN) The list is subject to change, especially on depending on what the defendant (Kevin Etter) does and/or states. I have listed out the Witnesses/Exhibits, as well as why they are important to Malibu Media.
- Colette Field – Owner of Malibu Media/X-Art. Will testify to the operation of their company, as well as how illegal file sharing affects them.
- Tobias Fieser - IPP investigator who recorded the illegal file sharing for Troll/Plaintiff.
- Michael Patzer – Creator of IPP software used by Mr. Fieser. Can testify to the design, operation, and reliability of the data collected by the software.
- Comcast – ISP; will be used to link defendant to the public IP address recorded by IPP, as well as provide any other logs/records that show excessive bandwidth usage and/or reports of illegal file sharing (DMCA notices). May also try to use the ISP/subscriber agreement or Acceptable Use Policy.
- Patrick Page – Forensic consultant hired by Troll Lipscomb to analyze the copies of the defendant’s hard drives/removable media for evidence of illegal file sharing via BT. Plaintiff’s works, other (non-Malibu Media) works being shared, BT software/client, .torrent files, evidence destruction (spoliation), evidence hiding (encryption), etc. Will also testify to any discrepancies in Defendants testimony regarding the use of the computers and the allegation of copyright infringement in comparison with his forensic analysis.
- Ernesto Rubi – Florida attorney specializing is IP law; has a BS in Computer Science, Engineering. Lipscomb recently tried to use a declaration from him (as an expert in wireless Internet connectivity) in case 1:12-CV-22767 (FL), Malibu Media v. Mark Fitzpatrick, but the judged denied it (Footnote 11, Page 5). Order_Doc54_22767(FL) I assume Rubi will be used to discredit any attempt by the Defendant to claim that his WiFi Internet connection was used by an unknown person – WiFi Internet connection run “Open” or it was compromised.
- Defendant – Will take anything written or stated by defendant and try to discredit and/or refute.
- Personnel on Defendant’s witness list – Will asses the information they will provide and attempt to discredit and/or refute.
- Defense Experts – Will asses the information they will provide and attempt to discredit and/or refute.
- Copyright Registrations – Needed to show Plaintiff has a valid case, as well as can seek statutory damages.
- Original version of Plaintiff’s infringed works – Possibly needed to compare with the digital media files (.avi, .mpg, etc.) associated with the .torrent files of Plaintiff’s works. Will be used to show they are representative copies of Plaintiff’s works and not simply short clips.
- BitToreent file (.torrent) corresponding to the infringed works – .torrent files/SHA-1 # which equals Plaintiff’s copyright protected works.
- Digital media files (.mpg, .avi, etc.) correlating to the .torrent file of Plaintiff’s works – The copies of Plaintiff’s copyright protected works.
- ISP documents identifying Defendant to the public IP address – ISP records to show the defendant is the ISP subscriber (pays the bills) OR is somehow associated with the ISP subscriber (Family, friend, neighbor, etc.).
- Internet pages & manual of router used by Defendant – Can be used to discredit/refute claims by the defendant concerning the WiFi Firewall/Router. Plaintiff may also try to use parts of the router manual to show the Defendant should have known to secured his WiFi Internet connection.
- Packet capture (PCAP) files showing the data transfer from Defendants’ public IP address and IPP International (Plaintiff’s investigator) for all infringed works. – Will be used to show that parts of Plaintiff’s works were obtained from Defendants public IP address and the SHA-1 hash numbers match the .torrent file they previously validated to be an illegal copy of Plaintiff’s works.
- IPP technical reports – They will show the BT activity from defendant’s public IP address, BT client data (type of client and version), and how much of Plaintiff’s works does the defendant have available to download (25%, 50%, 100%, etc.). They will also have a report on the “other” media (non-Malibu Media) being shared by Defendant’s public IP address on BT. They will try to link these other media items to the Defendant by showing it is something the defendant does (or has an interest in) in his work or personal life.
- Forensic copies of defendants hard drives and selected evidence from the hard drives. – Evidence. Will examine them to find any BT clients (especially the one they recorded, BT client and version), .torrent files, Plaintiff’s movie(s) in any format, and any other media they recorded as being shared via BT. They will also look for evidence that a system was wiped/cleaned and the operation system reinstalled, or that specific files/folders were wiped/deleted. They may also note any encryption programs, encrypted files/folders/drives, that could be used to store Plaintiff’s works. Any evidence of Internet searches for Plaintiff’s works or any related to piracy or illegal file sharing will be highlighted.
- Defendant’s discovery responses – Will take these responses and see if they match up with what other witnesses are saying, ISP records, forensic exam results, etc. Any discrepancies will be used to discredit/refute Defendants claims.
- Screenshot of letter from DreamWorks to Pirate bay. I assume they are trying to show that the Pirate Bay and other Web sites do not abide by US Copyright Law - WebProNews article. Malibu Media is NOT DreamWorks!
- Screenshot of Google search of X-Art and BitTorrent – Showing how easy it is to find illegal copies of Plaintiff’s works.
- Sample DMCA notices sent to third parties – This will likely be used to show that Plaintiffs send DMCA notices to Internet search providers like Google and Bing. I will bet that there will be NO DMCA notice sent by Plaintiff to Comcast for the public IP address associated with this Defendant – or likely any Defendants.
- Any DMCA notices sent to Defendant via the ISP – These are DMCA notices (not from Malibu Media) sent to the ISP which correlate back to defendants public IP address. They will be used to show that Defendant knew such infringement activity was ongoing and did nothing to stop it.
- ISP record of defendants bandwidth usage – This will be used to show that Defendants public IP address used a large amount of bandwidth, which is consistent with online copyright infringement. If there are any ISP notices to the subscriber concerning the bandwidth usage, they will be used to show that the Defendant did nothing to investigate and/or stop the infringement activity.
As I stated, this is a preliminary list and subject to change based on the particulars of each case. As you can see, the discovery portion if fully implemented is very costly in terms of man-hours and other costs. I would not doubt it going over $100K. Plaintiff knows that for 99.99% of the defendants, their assets do not come close to $100K. So having to spend that amount of money to possibly secure a win is likely to be a hollow victory. This is why the Trolls will do their utmost to get a Defendant to settle or at least accept a “walk-away” if the outcome is not assured. Well, how come they didn’t walk away from the PA
Bellwether Bench Trial??? Answer: The judge in that case forced the trial to happen. Until the forensic analysis disclosed that one defendant wiped and reloaded the operating system after being notified of a future forensic examination, the case was not assured. If that Defendant had simply removed the offending system (From the Mouth of Keith Lipscomb) from the residence and not provided a copy, Plaintiff would have had a harder time proving their case. Not impossible, just harder. NOTE: destroying/removing evidence is wrong and can get you into serious trouble – the damages assessed against this Defendant were increased based on his actions. Don’t Do It. *** Here is the PA Bellwether trial transcript. TrialTranscript_12-02078(PA) *** (Thank you Dark Moe & SJD) Audio files of the trial – here.
In my opinion, Malibu Media and Troll Lipscomb are in the business of monetizing copyright infringement. Since Jul 2013, they have only opened up cases in Nine States (FL, PA, CO, MD, WI, DC, IN, MI, & NJ). The fact that they do not file in more States is very telling. The fact that they tend to avoid jurisdictions with strong Doe Defenders and courts that question their operation is equally telling – Malibu Media hasn’t filed a case in California since February 2013.