“We Can Prove Every Case” (Troll Lipscomb/Malibu Media) – AKA: No Evidence – Harrison Case 1:12-cv-01117 (IN)

I will try to keep this short, but I apologize in advance for getting a bit long-winded. In the continuing saga of Malibu Media v. Harrison, Case 1:12-cv-01117, we have seen a very interesting development.  One that calls into question Troll/Plaintiff’s stated reason for filing these law suits AND the plain and simple fact that without some real evidence, going after the ISP subscriber is reckless.  I know this is shocking to many of you (sarcasm).  Now once you read the documents I sure we will have a comment or two to point out there is “some” evidence.  I of course beg to differ.

NoEVID1The following Objection and Exhibits are from Defendant Harrison (Attorney Quearry) and seeks the court to grant his motion to compel discovery from Troll/Plaintiff. The objection is well-written and I can’t see why it would not be approved – but I’m no lawyer either.    Harrison_Obj_01117(IN)   Harrison_Obj_EX1_01117(IN)   Harrison_Obj_EX2_01117(IN)   Harrison_Obj_EX3_01117(IN)   Harrison_Obj_EX4_01117(IN)   Harrison_Obj_EX5_01117(IN)   The files can also be found here.

The part of the “Objection” which is the focus of this article is the “DECLARATION OF JASON BOSAW” (Exhibit #2).  Mr. Bosaw,  Bosaw & Associates LLC, is the computer forensic expert hired to review the Troll forensic reports from Patrick Paige (see Exhibit 1 – very thin report).  He also reviewed the “Revised Settlement Demand by the Plaintiff.”

Bottom Line Up-Front {from Mr. Bosaw}

There IS NO evidence reported by the Plaintiff’s expert that demonstrates the Defendant is the likely infringer.

What is so funny is this professional opinion is ONLY based on the findings of Plaintiff’s expert and what the troll claims in the revised settlement demand.

So what did they find on Defendant Harrison’s hard drives??? I guess it would be better to list out what they did not find.

  • NONE of the 6 (six) X-ART related files were found to have ever been on the Defendant’s hard drives by the Plaintiff’s expert.
  • The technical reports DO NOT identify the specific device using the 98.220.43.119 IP address by its physical/MAC address and therefore CANNOT prove the Defendant was the infringer flawlessly without showing the Defendant’s device has the same physical/MAC address or has ever contained the files alleged to have been infringed.

What was found

  • Some sort of evidence to indicate that a Torrent client was used at some time.
  • Presence of several external devices being attached to the Defendant’s hard drives.

Now I don’t know the specific evidence Mr. Paige mentions, but if it was anything serious, Plaintiff sure would have said so. This indicates to me that the evidence is extremely weak at best.  Here is a past Fightcopyrighttrolls article concerning Mr. Paige.

Here is what Mr. Bosaw had to say about Plaintiff’s evidence

Evidence of a Torrent client in use IS NOT evidence of infringement of the Plaintiff’s works. Torrent protocols are used for a wide range of legitimate purposes including downloading of open source developer software applications and NOT only for infringement of the Plaintiff’s works.

Existence of Torrent files on the Defendant’s hard drive IS NOT evidence of infringement of the Plaintiff’s works. NO Torrent files found by the Plaintiff’s expert were identified as belonging to the Plaintiff.

Presence of several external devices being attached to the Defendant’s hard drives IS NOT evidence of infringement of the Plaintiff’s works. Removable devices are so prevalent in today’s digital age; it would be hard to find a computer that has not had a removable device attached to it at some time.

Of the numerous external devices listed in the Plaintiff’s expert’s Exhibits C and D, Zero (0) are reported by the Plaintiff’s expert as being connected to the Defendant’s hard drives during the alleged infringement period of the Plaintiff’s works as detailed in the six (6) Technical Reports between June 3, 2012 and September 30, 2012. Had external devices been connected during this period, they would be the only devices able to store the files allegedly downloaded by the Defendant because the files were NOT found to have ever been on the Defendant’s hard drives.

Now I don’t know for how long Troll/Plaintiff has had this information, but I would make a friendly wager that it was soon after Mr. Bosaw signed the declaration (20 Mar 14).  Knowing Mr. Bosaw was prepared to testify I would expect the Troll offered a “walk-away” deal.  I bet the Troll was unwilling to cover Defendant Harrison’s legal fees and costs.

The fact that they are still holding on is very confusing.  The best they can hope for is to get IPP personnel on the stand and say that they recorded the IP address as sharing Plaintiff’s works.  If the objection is successful in compelling the discovery of IPP information, then they will be in even worse shape.  Then they get grilled by Attorney Quearry on the simple fact that they cannot determine who was using the public IP address at the dates/times in question.  The best I could see them trying to do is link Defendant Harrison to all the other non-Malibu Media files that were being shared via the BitTorrent client over his public IP address.  The Troll could also try to claim Harrison removed the offending system (i.e. the “mystery” computer) that was used to illegally download/share Plaintiff’s movies.  Without having any evidence to back up such a claim, Troll/Plaintiff will come across even worse.  Not that such a prospect has ever stopped them before.  

Reasonable?

Following Defendant Harrison’s filing, Troll Nicoletti made a motion for attorney fees and costs.  Troll Nocoletti wants $4,316.25 for having to respond to Defendant’s motion to compel.  He claims the amount was reasonable.    Plaintiff_Fees_01117(IN)

Troll/Plaintiff Speaks to the Media

In case you missed it, The “New Yorker” has an online article about Malibu Media – “The Biggest Filer of Copyright Lawsuits? This Erotica Web Site.”  I thought it was very soft on Troll/Plaintiff, but what can you say, I have been called “Anti-Copyright,” Pro-Piracy,” and even a member of an “Internet Hate Group.”  I’m none of these.

Troll Lipscomb and Collette even spoke to the reporter, which is unusual.  One quote the New Yorker got from Troll Keith Lipscomb was this gem.

“We can prove every case,” Lipscomb said, adding that Malibu Media drops a suit if there’s any hint of a mistake.

Now why would Troll Lipscomb make such an outlandish statement that has no basis in truth???  That is my opinion Keith.  I believe they fear all the information that is making its way into the public concerning their slimy business model.  They don’t want the world to see what they are doing unless it is a view they approve of.  Somebody is trying to pull a Prenda and lives in their own fantasy world.  And yes Keith, you and your clients who follow this business model are “Copyright Trolls.”

DieTrollDie :)

PonyEVID

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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15 Responses to “We Can Prove Every Case” (Troll Lipscomb/Malibu Media) – AKA: No Evidence – Harrison Case 1:12-cv-01117 (IN)

  1. I can see at least one way that Malibu can proceed with, and potentially still win, this case. In particular, a lot depends on whether Mr. Harrison can get summary judgment in his favor. Generally, summary judgment will only be granted when there is no evidence supporting the opposing parties position; in this case that Mr. Harrison was the one who actually copied and shared the file. The admission by Mr. Bosaw that a torrent client had, at some point, been installed on or used by Mr. Harrison’s computer, as well as the apparent admission that external devices had been installed (and are no longer available?) may be enough evidence for Malibu to withstand summary judgment. Then they can argue that the IP address was noted as participating in a torrent swarm, that the presence of a torrent client has been admitted, and for the fact finder to put two and two together. I would say that such an approach is risky for Malibu – they could end up with an embarrassing loss and have to pay Mr. Harrison’s attorneys’ fees. However, Mr. Harrison is obviously taking on extra risk and expense as well.
    I am interested to see how this plays out. Please keep on reporting!

    • Rumplestein says:

      They would need to explain why there is no evidence on Harrison’s computer of the infringed material. Why there is no evidence that any device was connected to computer during the supposed time of infringement. Their expert found no evidence. Zero evidence plus zero evidence equals zero.

    • DieTrollDie says:

      Yes it is risky for them. One thing I haven’t been able to do is check if any of the filings mention what BT client/Version was recorded by IPP. If they do not match with Mr. Paige’s findings (i.e. one was uTorrent & the other was Vuze), it will look bad. Mr. Paiges report is very thin on evidence. The biggest thing he states is the Windows CD key he found could be pirated.

      DTD :)

      • Doubting Thomas says:

        Even the things you point out are not evidence of infringement of the plaintiff’s movies. It isn’t difficult for a trial attorney to point out that Mr. Paige’s perhaps, maybe, could of, doesn’t mean anything. The case isn’t about the windows key and the judge might not allow it in a trial. Perhaps Mr. Harrison had the Geek Team install it, and perhaps not.

        The evidence suggests the defendant didn’t try to hide anything. He didn’t uninstall bit torrent client. He didn’t wipe his drives. He didn’t use a registry cleaner.

      • that anonymous coward says:

        One wonders, as I’ve not had a chance to review the docs myself, if the alleged “pirated” windows key is not the smoking gun they claim.
        If the machine isn’t home built, but made by a manufacturer – you know many of those machines are all activated and using the same key right? (and if the “expert” didn’t know this well you get what you pay for I guess.)
        It does not match the COA label on the machine, and the key in use will most often not function for a consumer doing a full reinstall by hand but will survive a system reinstall from the manufacturer process. The in-use key is perfectly valid and legal on the machine.

      • Jiminy Cricket says:

        The exhibit shows the OS is OEM and the key is for an anytime upgrade. Paige is proving to be lose with the facts and wild with the speculation and accusations.

  2. Jane Doe says:

    This is turning into a great case that proves even when there is no evidence, Malibu Media / X-Art still want $5,000 to $10,000 to go away. Someone has to pay the mortgage on the 16 million dollar mansion and to board Collette’s show horse.

  3. WDS says:

    Is it common for there to be fee motions in the middle of the case? I thought fees were normally awarded to the overall winner, not the “winner” of an individual motion while the case is still going on.

    • Anna Nie Mouse says:

      I don’t know how common this is. However, it was during the teleconference on discovery that the Magistrate encourage the defendant to submit any problem concerning discovery. Item 6 was denied by Magistrate and was a request for all PCAPs that occurred between defendant and other in the swarm.
      It doesn’t take much thought to understand how reasonable this is. This is the evident that defendant’s IP address was involved in the infringement with others. Interpretation of the evidence should not be left to the Plaintiff’s paid expert. The defendant should be allowed to have his own expert interpret the evidence. Who knows what might be discovered? Possibly that one of the IP addresses is a printer? Perhaps that IPP was using a honey pot and distributing the work. Malibu Media claims to provide this evidence is burdensome and unreasonable. However a worn drive tape is about $35.00 and Malibu Media’s work is very small and short. It would be a matter of minutes of transactions and clearly from the Plaintiff’s and its’ experts own testimony in other cases, IPP can easily pull and provide the data.
      If this case does not go in the defendant’s favor, he will surely will be able to appeal because the Magistrate prevented the defendant from examining the evidence against him prior to trial.
      The plaintiff claimed the defendant could subpoena IPP to get whatever information it wanted. However German law does make German companies comply with subpoenas issued by foreign courts. And so now we know why the Germans surveillances is based in Germany and not US. They are immune from US law.

  4. As far as fees go, I was referring to whichever side loses at trial. The pirated windows key is interesting – I had not reviewed the case beyond this post by DTD. Depending on exactly what it is, it could be evidence of a prior bad act, which will generally NOT be admissible under FRE 404. DTD’s point about the client matching would be interesting for sure.

  5. Anon E. Mous says:

    I have to laugh at Lipscomb’s claim that they are confident in taking these cases to trial. We all know that isn’t the case, there is no way in hell they would take all these to trial, the cases would be a money looser right off the top. Don’t believe me, go ask the RIAA & MPAA how that strategy has worked out so far.

    The RIAA & MPAA have spent tens of millions of dollars, and have barely recouped the costs they spent on litigating their cases. The RIAA & MPAA lawsuits have more been symbolic for monetary rewards, sure they have got awarded judgments but how many have they been able to collect?

    Lipscomb went to trial one time, and only because the Judge left Lipscomb go, and even with that case, Lipscomb will be lucky if he gets a tenth of what Malibu was awarded. It cost Lipscomb more then they will ever receive out of that trial (And I use the word trial loosely since there was no evidence from the defense in it really, no cross etc etc)

    The troll model is not based on filing against a single accuser, nor is it to go to trial…It is all geared to scaring some poor ISP subscriber into settling to avoid the threat of a legal action against them with and incurring big scary damages. Lipscomb has no desire to go to trial…period.

    All a trial would do for Lipscomb would be to have these lawsuits and what and how they are based in the flimsiest evidence that won’t stand up to scrutiny. We all know it. Defense counsel’s know it. And so does Lipscomb and his troll partners.

    As for Nicoletti’s motion for costs and fees….lol…another tactic from the book of Prenda. We all know that motion has little chance of being rubber stamped by the Judge. The motion is designed to threaten Harrison that if they continue this, that Harrison will incur huge financial hits and owe big money to the trolls by the end of the litigation. Straight from the book of Prenda law tactics that motion is.

    I would hope that the Judge will see that this is more of a malicious motion with the intent of bullying Harrison by the threat of huge costs. Honestly you would have to be willfully blind to not see that is the only purpose that the motion serves.

    The fact that there is no files on of XArt titles on the computer is pretty much an indication of how serious in the hole this case is going to be for Nicoletti/Lipscomb/Malibu. No evidence means there case is in the crapper in a big way.

    The fact that there was a torrent client means squat. No hash values from XArt Torrent files, no movie files, means no evidence of infringement. There mere fact that they claim there was removable media is so open ended it isn’t even funny. That could be an SD card from a camera, could be a thumb drive, someone had an IPod or MP3 player or a tablet, even a removable drive. That still inst evidence that is going to make a judge believe there is infringement of Xart titles that were downloaded or shared.

    What we are witnessing here is desperation, and the Big Bad Wolf is still outside threatening to blow the house down for the 10th time and still blowing hot air. This is starting to be a hail mary to come out with some scraps of cash or a nice confidential settlement to Harrison to just walk away with no money changing hands.

    I would be of the belief that Lipscomb and Nicoletti are dreaming to think that Harrison will walk away now, I think Harrison hasn’t come this far to buckle now, even with Nicoletti’s laughable motion to try an intimidate Harrison with the threat of costs. It will be interesting to see how the Judge look’s at Nicoletti’s motion and think it will be seen for what it is.

  6. Davey Cricket says:

    If the request for discovery was so meritless then why did Nicoletti spend $ 4300 addressing it? A clownish bully. However how it sits now, with no evidence on the hard drive, it seems the Malibu Compliant is frivolous, without merit and they may need to pay Harrison about $20,000 to go away.

  7. Pingback: Malibu Media’s “evidence” or the march of the Naked Emperor | Fight Copyright Trolls

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