Malibu Media Preliminary Witness and Exhibit List (The Bucket List), 1:12-cv-01115 (IN)

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.

Witnesses

  • 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.

Exhibits

  • 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.

DieTrollDie :)

Old School Copyright Infringers

Old School Copyright Infringers

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
This entry was posted in Keith Lipscomb and tagged , , , , , , , , , , , , , , , , , , , , , , , , , , , , . Bookmark the permalink.

5 Responses to Malibu Media Preliminary Witness and Exhibit List (The Bucket List), 1:12-cv-01115 (IN)

  1. Anon says:

    No one would pay even 25 cents at a peep show to see X-Art. Very sad people, including the Judge!

    • DieTrollDie says:

      Actually according to Colette Field (X-Art), a great many people (approx 50,000 subscribers – as of 10 Jun 13 BellWether Trial transcript, Page #32) are subscribers to their Web site. At $24.95 a month/$99.95 a year, that is a pretty penny. My opinion of Malibu Media and the Lipscomb crew are known and I agree with you. I would not go so far as to say that about the judge simply because he is handling these cases – I don’t know him. I would love to hear from some of the people (to include attorneys) who have been in his court.

      DTD :)

  2. Jack says:

    Their WiFi expert and router manuals might come back to bite them in the ass. Even people with secured internet connections using a modern Cisco or Linksys wireless router (even WPA2-PSK or better encryption) can’t be proven that their WiFi wasn’t hacked. Nearly all modern routers have a “WPS Enable” button on them (all the ones in my office and my one at home) that is susceptible to a WPS Pin bruteforce attack that takes less than 6 hours to complete. Nearly all routers have this and some (pre-2012) you can’t even turn the WPS feature off. NO router manual that I’ve read openly states the WPS Pin weakness. Wash + Reaver = pwn3d wifi.

    Even with the PCAP data, Bittorrent packets only contain the IP Address – it isn’t like they contain the MAC address of the machine so tying it to a specific machine is basically impossible.

    Even with their mountain of expert witnesses, they are no better than Prenda because these extra steps do absolutely NOTHING to identify the actual infringer more than the IP.

    • DieTrollDie says:

      I think the WiFi aspect is an area Lipscomb knows will be hard to get past if there is no “smoking gun” evidence found on a Doe’s computer. That is why he is trying to use a declaration by Ernesto Rubi (Hi Keith!). Also note what Lipscomb said about this in the PA Bellwether Bench trial (Page 204-205).

      DTD :)

  3. that anonymous coward says:

    One would hope the Judge would finally bitchslap them for talking about TPB.
    A non-US entity is not subject to US law, which is why TPB mocks every letter they get.
    These lawyers/firms who seem to think that US law is global law and that they can make demands on citizens of other countries.
    A US court shouldn’t entertain this “evidence”.

    The amount of bandwidth used by a subscriber shows very little. As it isn’t broken down by how it was used, there is only the possible inference it was illegal activity without any proof. I can show your car has this many miles on it, so this proves your a serial killer driving this radius looking for targets. There is no meter showing how much you are using, and unless your speed has dropped significantly you have no reason to look… and even then the ISPs rarely can provide the speeds they advertise let along maintain them 24/7.

    I hope they put Collette on the stand, her statements on that website about her using Napster to infringe on copyrights shows that she is happy to do it.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s