PA Bellwether Case – Bench Trial Comments – 13 June 2013

PA Bellwether Case – Bench Trial Comments

19 Jun 2013 Comment – Judge Baylson issued his report on the Bellwether trial.  Fightcopyrighttrolls and The Philly Law Blog (Jordan Rushie) have postings on the report.  Not a shocking report and certainly not what Lipscomb would have liked to have seen.

18 Jun 2013 Comment – Here is a little bit from the trial where Lipscomb reads part of the deposition of John Doe # 1.  It shows what they think of people who visit sites like mine and Fightcopyrighttrolls.com.  What do they fear from people who want basic information on what these law suits are about???  If your cases are so strong, the free flow of information will do nothing to affect the outcome.

This part starts at approximately 9:14 on part two of the audio.  John Doe # 1 is asked to –

Identify each Web site, blog, or message board, which you have visited, or which you have subscribed, posted to, which refers to, relates to, or discusses Internet Piracy, BitTorrent file sharing , or which provides information to people regarding suits which alleged people have committed online copyright infringement.

13 Jun 2013 Update – Doe #16 and Lipscomb stipulated that Doe #16 would pay $128,350.50 for fees and costs associated with the trial.   Doc_198-1_Stip_Fees_02078(PA)

Well I completed listening to both parts of the PA bench trial recordings, 2:12-cv-02078, and no big surprises were noted.  Even with all three of the defendants (Does 1, 13, & 16) admitting liability (committed the infringement), it was interesting to see many of the otherwise hidden aspects to how the Copyright Trolls operate.  NOTE: It is my opinion that Keith Lipscomb and Malibu Media LLC (X-Art) are still Copyright Trolls.  I do not equate they are the same as Prenda Law, just a different variety of Copyright Trolls.  I do not dispute that Malibu Media is damaged by copyright infringement; Or that they do produce & own the content in these law suits.  I just believe the methods they are using (directly & indirectly) are excessive, inappropriate, and designed to generate revenue on a repeatable basis.  In my opinion, their actions (and inaction) are indicative of an operation not concerned with stopping copyright infringement.  If anyone wants to coin a new term for the sub-species of copyright trolls I would be interested.  When Prenda Law had real content owners as clients, we still considered them a copyright troll.  Just because there is a content owner and a valid copyright registration, does not mean these people should not be called Copyright Trolls.

It is clear by listening to the trial that the confidential settlement agreement between all parties dictated what was generally going to occur.  John Does # 1 & 13, were able to remain anonymous and pay an agreed upon amount to Plaintiff, by admitting liability, stipulating to various facts, and not being a pain in the rear to Plaintiff’s witnesses/experts (no cross-examinations).

John Doe #16, due to his perjury and evidence destruction, didn’t fare so well.  There was still a settlement agreement based on admitting liability and making the case easier for Plaintiff, but court did issue a damages finding against him in the amount of $112,500, plus attorneys fees and cost (TBD).  The judge came to this calculation by starting off with the accepted base amount of $2,250 (3 X minimum of $750) for each act of willful infringement.  He then multiplied it by 10 for the perjury and evidence destruction ($22,250); then multiplied it by the 5 movies – $112,500.  The total could go as high as $500,000 once attorney fees and costs are assessed.  The statutory damage portion was significantly less than what Lipscomb asked for – $375,000 for 5 movies.  Lipscomb told the court that he would like to have seen the court issue the following damage amounts for John Does # 1 & 13.  Doe # 1 – $30,000 X 4 movies = $120,000.  Doe # 13 – $2,250 X 35 movies = $78,750.  Note: Doe # 1 lied about his activity, while Doe # 13 never denied it.  This was the first time I heard about the $2,250 statutory damage amount as being a commonly accepted base amount.

Please take the time to listen to all the testimony and tell me what you think.  As it was decidedly one-sided, some hard questions were not asked of Colette, IPP Limited personnel, and Patrick Paige.  Colette did not speak to the fact that they do not issue DMCA notices to the ISPs to get the subscribers to stop the activity.  They were also quiet on the issue that since they started encrypting where they store their movie prior to release, it has to be a paying member who loads copies up on BitTorrent.  Why hasn’t she gone after the initial torrent uploader or at least suspended the accounts of those responsible???

It was interesting to hear that for a recent average of 50K subscribers, Malibu Media/X-Art charges $24.95 month/$99.95 year.  That works out to a range of approximately just under $5 Million on the low-end and just under $15 Million on the high-end each year.  Colette said it costs her approximately $2 Million a year to produce the content.  They have employees and other costs, but still looks like a nice profit.  I wish we would have heard how much money Malibu Media received from these cases.

The other witnesses were interesting to listen to and may be worth discussing the various aspects of their testimony.

Hearing Lipscomb complain about being called a Copyright Troll was a laugh.  He really didn’t like being associated with Prenda Law.  He told the judge that all of their cases were against single defendants who were the “worst of the worst” BitTorrent copyright Infringement offenders.  They (Lipscomb/Malibu Media) were a “Different Model” of litigation (compared to Prenda Law), with these offenders infringing on 10, 30, or 60 plus Malibu Media copyright protected movies over the span of weeks and months.  What Lipscomb didn’t tell the court was that previously, he ran the same business model as Prenda Law.  Mass-Does law suit, using the Florida Bill of Discovery statute, not taking anyone to actual trial, and the failure to drop case promptly when presented with clear evidence of non-infringement are all hallmarks of a Copyright Troll.  Neither did Lipscomb inform the court the reason for changing his business model.  Yes, it was because of the Does who fought back, our Web sites, our community members, and the defense attorneys who took action.

So what it looks like now is Lipscomb/Malibu Media is only going after an US public IP address if it is sharing a large number of Malibu Media movies – let say 10+ movies, over a period of two+ weeks.  They also will try to determine other type of copyright protected media the public IP address is sharing in addition to the Malibu Media content.  Their expert (IPP Limited) stated that approximately 80,000 US IP addresses are infringing upon Malibu Media movies each month.  With that number, I don’t expect Lipscomb to slow down on the cases.  With Malibu Media he charges an hourly rate of $300 and most likely also has a settlement split agreement.

Also of note was some of the various questions they asked the Does during depositions.  One of the questions they asked was if their network was “open” or secured with a password.  An open WiFi can be a harder defense to get around unless there is addition evidence to show infringement activity by the ISP subscriber.  A secured WiFi Internet connection makes it easier for them, as unless a device is compromised, the offender likely had to have the WiFi password – indicating a member of the residence.  Lipscomb made a big deal that many people were falsely claiming their WiFi Internet access was “hacked.”  Regardless of the security of the WiFi Internet connection, he goes on to ask the Does if after they were notified of the case by the ISP subpoena, did they change the password on their WiFi Internet device.  Lipscomb made the point that for these three Does, none of them changed their WiFi Internet connection passwords or did an inquiry into what happened after notified by the ISP of the subpoena.  He believed the Does didn’t do this as they were the offender and such actions were pointless.  I have repeatedly stated that doing that is important and to document what you find.  As Plaintiff does not send out DMCA take down notices to the ISPs, the ability to get anything off the Small Office/Home WiFi Router soon after the activity is noted is doubtful.

The last part I will mention here is what Lipscomb told the court concerning the computer evidence.  He stated that he initially believed that for these types of cases, there wouldn’t be any computer evidence, as the Doe would simply remove the system that did it.  Without the computer, these cases would be harder to prove unless other supporting evidence was available.  It can be done, but there is a good chance of losing a case also.

With the exception of this trial, no other cases have been judged on their merits.  This was no accident on the part of Plaintiff.  As this cases was more of a show then a substantial examination of the facts (one-sided), I’m not very impressed.  The fact that copyright infringement occurs and the monitoring software appears to work does not justify the slimy past and present activity of the copyright trolls.  I think we may see a small number of future trials, but for this business model, it is a usually a losing option.  Still, providing false statements/testimony and destroying evidence can get you into serious trouble.

DieTrollDie 🙂

About 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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85 Responses to PA Bellwether Case – Bench Trial Comments – 13 June 2013

  1. Raul says:

    So it looks like Lipscomb triples the per title penalty of $750 to $2,250 as a disincentive for a Doe to litigate.

  2. “Colette did not speak to the fact that they do not issue DMCA notices to the ISPs to get the subscribers to stop the activity.”

    Colette testified they send out hundreds of DMCA takedown notices, but the torrent sites won’t remove them because they’re overseas. Colette read into evidence an email where the Pirate Bay pretty much said “We aren’t governed by American law, so go f*** yourselves.”

    Judge Baylson wasn’t too pleased at TPB’s response…

    • DieTrollDie says:

      Thanks Jordan. I don’t remember which Doe it was, but Lipscomb even mentioned that one of the Does had 4 DMCA notices from his ISP. Malibu could do the same thing as CEG and send out DMCA notices.

      DTD 🙂

    • that anonymous coward says:

      “Colette testified they send out hundreds of DMCA takedown notices, but the torrent sites won’t remove them because they’re overseas. Colette read into evidence an email where the Pirate Bay pretty much said “We aren’t governed by American law, so go f*** yourselves.”

      Judge Baylson wasn’t too pleased at TPB’s response…”

      Aww that is so cute.
      Your “art”, dear Colette, is punishable in Saudi Arabia (and many other countries where you make it available), please present yourself for punishment.
      Oh your not held to Saudi Arabian law? So why is TPB held to American law?
      Or is it you only think the law should apply when its on your side?
      Or are you delusional enough to think American law applies to the entire world?

    • DieTrollDie says:

      Yes, I bet Lipscomb loved pulling out that infamous TPB notice. It still doesn’t answer why they do not issue them to the US ISPs once the public IP address is identified by IPP. The ISP can and will take action to mitigate the use of its network – or it can face liability. The DMCA notices does not prevent trials and could be used by the Plaintiff. Lipscomb could point out (in any future trial) that the defendant was notified and did nothing. Why? because he is the infringer.

      DTD 🙂

      • that anonymous coward says:

        Because they can show a notice sent to a non-US based site and claim everyone acts like that. TPB is famous for its responses to moronic companies who send threats to them assuming that X countries laws apply globally, and show a massive ignorance of how BT works.
        http://thepiratebay.sx/legal

        There has been a trend for years that Google is being flooded with millions of DMCA takedown requests. (And we’ll skip over the censoring of bad reviews, removal of content they do not own, removal of content they put there, demanding removal of their own clients sites.) Google is now just “the Internet” to these companies. They don’t want to bother sending notices to the actual hosting sites, they want the streamlined system they browbeat Google into giving them. But these allegedly infringing files are not on a server controlled by Google.
        This is just a system that is getting more and more broken.

        Of course now WB via some firm is sending DMCA notices with demands for payment of $20 for allegedly doing wrong. And as expected if someone attempts to pay the amount, suddenly there is a longer list and a higher cash demand. Pretty sure this was never how it was supposed to work, but at $20 a pop (more if they answer) its cheaper than the legal process which has been poisoned by the actions of the trolls.

        Until there is real reform that stops propping up a business model with huge cash prizes for failing to meet consumer demand, we’ll see more of these things.

  3. OngChotwI says:

    While Doe #16 admitted to falsifying evidence; I’m missing why it took 4 months to discover the first drive was unreadable by the crack forensics folks; yet it was evidently readable for Attny Smith. Why so long, and which was it.. unreadable or not? And how believable is the Crack Forensic person Mr. Paige who orders illegal memory/work aids through the police department? FCT mentioned that Xart had shared 9 titles on a porn downloading site that had later appeared in their porn torrent cases. (I assume the number will climb as more of the Xart titles are searched for.) i.e. In my opinion, these are Copyright Trolls vs. Prenda who are Copyright Trolls Without Products Being Sold. Why, if Doe #16’s ip# continued to torrent for months after it was no longer Doe #16’s ip#.. was IPP’s tracking software considered useful? (Wow.. 24.x.y.z changed from a Linksys router to a D-Link router. Must be the same culprit.)

    • Krono says:

      Part of the reason it took so long to figure out about the first hard drive was that it spent nearly a month sitting around unopened in a shipping box at Lipscomb’s firm before someone finally opened the package they’d received to see what it was and figure out “Oh hey, here’s that really important piece of evidence that was supposed to go to the expert.”

      As for their expert, Mr. Paige is not very believable. Besides rendering the first hard drive unreadable by removing it from it’s external enclosure, and generating court problems claiming it was unreadable, he was pretty lacking in other respects judging by his court filings. For starters, looking at his CV, he appears to have let all certifications expire 4-5 years ago when he became a supervisor. In other words, he likely stopped doing much hands on work for a few years before he opened his own computer forensics business. At which point he took a quick refresher course to blow some of the rust off.

      Unfortunately, however good he may have once been, the rust is still there. He apparently never bothered to look at the deposition to see what the defendant said was his system configuration. Leading to the whole embarrassment where the judge has to appoint his own expert while Lipscomb has to explain to the judge that they only just figured out that the desktop had two hard drives in it despite the facts that the defendant had already told them that, and that they had four hard drive images.

      He also essentially ignored the computers other than the desktop in his first filing, which was bad from his perspective as it should not have been difficult to figure out that the 240gb drive was paired with the 1tb drive, the linux laptop had signs of tampering on it, and the mac showing no signs of tampering which would help him build a case that the defendant clumsily tried to cover his tracks.

      Then once he finally was examining the correct hard drive, and found the listed windows install date, he then proceeded to have a non-expert on Lipscomb’s staff call Microsoft to inquire about the last activation date. He then had to call himself as the staffer had failed to get the name of who they talked to, and had gotten only a vague answer. He himself got a specific answer, but he failed to get more than the first name of the person he spoke to. I’m still curious as to whether those calls were covered under the old subpoena or not.

      So after much bumbling around, he finally had decent evidence of tampering, thanks to the really, really, really obvious tampering of reinstalling two operating systems.

      If the defendant had been less obvious, just uninstalled his bittorrent client, and used Spybot 1.4’s secure shredder, or something like Eraser: http://eraser.heidi.ie/ on the remaining files, I’m doubtful that Mr. Paige would have been competent to find any remaining traces of a bittorrent install in the registry, especially if the internet browser histories were set to something short like one week.

      Basically, Mr. Paige didn’t find evidence of tampering because he’s an awesome forensics investigator, he found evidence of tampering because the defendant did a horrible job of his tampering.

      In all fairness, for all we know his late partner might have been better and more up to date on forensics while Mr. Paige did more managing of the business end of the things. Also while clumsy, the work he did is adequate for detecting blatant tampering, and attempts to delete files using shift+delete, which is likely the majority of what he sees. Most people just aren’t technically skilled enough for greater attempts.

  4. creature says:

    I also wonder how does the IPP work against the terms of service of The Pirate Bay, which clearly state:

    Our site (and all of its contents) is free of charge for anyone for personal usage. Organisations (for instance, but not limited to, non-profit or companies) may use the system if they clear this with the system operators first. Permission for organisations/companies is not needed for obvious “well meaning” usage, i.e. distributing works of cultural benefit for the end user.

    The site may not be used by anyone with the intention to track usage, log ip addresses/usage, commit fraud or anything else that we consider intrusion of privacy or disruption of our service. If you are not sure if this would be the case for your usage, please contact us in order to get our permission.

    It appears the IPP’s (and therefore Malibu Media as IPP is their agent) use of The Pirate Bay is a violation of the site Usage Policy. While this alone is not enough to get the evidence excluded, this indeed would raise further questions. Especially important would be whether their actions of connecting to the people’s BitTorrent clients with the malicious intent could be considered “unauthorized computer access” as defined by CFAA.

    Regarding wireless router encryption, I don’t get it. If you leave your WiFi connection open for the sole purpose of it being used by other people, this basically makes you an Internet provider. Unless you know that someone is doing copyright infringement via your system, why would you need to password-protect it, or do anything at all? Every Starbucks and Motel 6 is doing so, and I really doubt they investigate at all the copyright infringements committed through their systems.

    • that anonymous coward says:

      You mean how “Six Strikes” is using Vuze in violation of their terms of service?

      Corporations get special rights now allowed to us regular people.

  5. Martha says:

    Are the numbers pure BS? I thought I heard toward the end of 2nd audio, Doe16’s attorney say that he has a confidential settlement on the amount of damages with Lipscomb. Judge Baylson replies that is okay I’m going to give my judgement and you pay whatever you two agreed to.

    Unlike Judge Wright of CA, Baylson is absolutely clueless about Bittorent technology. He asked the most ridiculous questions of the German boys who are immune to US law. Why even waste time swearing them in?.

    Paige’s testing of IPP software was inadequate and he is not a software expert. He did not test for false positives. This is very likely the same software that Guardaley used that the Berlin Court found doesn’t work.

    The Judge also allowed Colette and Lipscomb to bob and weave without answering the simple question of whether they include copyright warning in every video clip. The answer is no and that opens the possibility that defendant had no means of knowing they were infringing. Therefore is was not willful infringement at all.

    I get it about Doe16 being bad but, you know Judges should be use to people lying on the stand. Perjury is very common. Much of what Mr Lipscomb says, is misleading the court and pure fiction. Ten fold on top of treble? The judge could have just left the damages at treble and given him a half year house arrest.

    Okay we get it. Little people stealing copyright material requires ruining the person’s entire life to provide an example for the masses. And it doesn’t matter how worthless the content of the work is. It could be a photo of a happy face drawn on my penis,

    To answer above comment concerning hard drive. The 1st hard drive was readable when in it’s portable USB enclosure. The expert removed it from the enclosure and for some reason that is what made it unreadable. The Court appointed expert pointed this out and thought the first expert had erred and should have, as standard procedure, made a forensic copy without removing it from enclosure.

    Jordan Rushie, we understand. You got a sweet heart deal for your client. Which is really great. You did right by your client. And now you have to say how wonderful Colette and Lipscomb are, perhaps untilt the end of time However this trial was uncontested, A one sided dog and pony show that is a perfect setup for future massive out of court settlements, many of the Does will be innocent but threatened and terrorized.

    It will not be surprising if this sham of a trial ends up doubling or tripling the out of court settlement demands of Lipscomb.

    • “Jordan Rushie, we understand. You got a sweet heart deal for your client. Which is really great. You did right by your client. And now you have to say how wonderful Colette and Lipscomb are, perhaps untilt the end of time”

      Nope.

      These are just my personal observations.

      My blog and commentary has absolutely nothing to do with the case, which is why I waited until after trial to say anything. I have no dog in this fight except to express my views. Sorry if they make you sad, or the reality of copyright law doesn’t conform to the popular narrative.

      • Foldofktkkfodkekfk says:

        Jordan, you lost to the shithead. Of course you’re going around now saying what a great trial lawyer. What a smart guy. What great evidence. Drop the ego. He’s still douche drainage and isn’t a good lawyer. Good lawyers don’t troll porno copyrights.

        He had a judge in a hurry to get this bullshit off his docket. He had the same old bullshit evidence. He had a judge who is obviously technologically inept. He cherry picked the guilty does who weren’t going to fight. The rest “settled confidentially”. Wtf ever. It was something that seemed good but ended up just being a docket clearer for the sake of show.

      • Martha says:

        Jordan, I’d have a lot more respect for Colette and her husband if they would just go out and rob old ladies on their way to church, instead of hiding behind shell corp and lawyers. We’ll find out exactly who they are once we get either one of them deposed and cross examined. Mark my words, it is not going to be pretty.

      • that anonymous coward says:

        @Foldofktkkfodkekfk
        Ummm… yeah so the Judge who ORDERED THE BELLWETHER just wanted it off his docket. He made it take longer just for fun?

        Maybe direct some of your anger at Doe #16 who lied to the court and destroyed ANY HOPE of anything good coming out of this. Someone who got our hopes up of something amazing happening, an actual trial with actual evidence where the issues with this entire methodology could be addressed and pissed it all away.

        Jordan did what was best for his client, sorry you think that is a horrible thing. It makes me sad when people settle, but I never judge them for doing so. I am not living their life, I don’t get to make those decisions for them. Jordan talked with his client and explained the options and the client made the decision that was right for him.

        MM and their lawyers might be lying scum (IMHO), but your anger at Jordan and the Judge seems real misplaced.

    • that anonymous coward says:

      I will be the first to admit that Jordan and I aren’t bestest friends, but he worked hard for his client. He states what he believes and stands by it, he isn’t going to do anything he doesn’t believe in. (even if I think he’s wrong sometimes (and this is why we aren’t bestest friends)). 😀

      His disagreement with certain aspects leads to discussion, sometimes things change sometimes not. I am much happier that Jordan is willing to share his version (this is not a slam I could not come up with a word that fit just right) of how things are and engage in discussions with us. To listen to only 1 set of voices leaves you in the dark on some issues, and I would rather hear all possible sides and move from there. I can hear some of what he says and decide I disagree, but I can raise why I disagree and refine down to where it diverges.

      I had much higher hopes for this case, as I think many people did, but the actions of 1 person really changed the playing field dramatically. All sorts of things we hoped to push into the bright light got shoved to the side. It was as they say… a complete cluster fsck on pretty much both sides (MM and D16).

      This is but 1 battle in what is a long war.
      And if MM ever targeted me, I’d hire Jordan… mostly because I can plainly state I’ve never downloaded any of their crap and Jordan would believe me. Its that whole I think girls are icky thing that works in my favor there.

      • Thank you. I really, truly appreciate that. And as much as we hate each other, I appreciate that you at least get where I am coming from.

      • that anonymous coward says:

        You hate me? 😦

        Well now I has a sad.
        I don’t hate you (well except during that 1 case), but you changed your position and have been contributing since then.
        I enjoy you offering a different perspective, we can disagree on something and not hate each other.

      • I don’t hate you. I was being tongue in cheek. (I am the guy who botched a Mark Twain quote in open court)

        I appreciate people with a different perspective.

    • ongchotwi says:

      Thanks, Martha. I’ve often had to go to reading directly off the usb enclosure’s HD since the client has managed to break the enclosure’s electronics – plus it’s many times faster.

    • "Come one Man!" says:

      First off- Martha, you have a penis?
      Secondly – I agree with you that this was a “one sided dog and pony show that is a perfect setup for future massive out of court settlements, many of the Does will be innocent but threatened and terrorized”.
      Which means more mass suits against does, which means many, many more innocent and not so innocent people settling, which I think means more money helping to pad Jordan’s pockets. *Bonus* – Less work for him to do too! In my opinion that’s a dog you have in this fight sir.

      I think you will soon have foot in mouth disease again, as I think you recently did when Prenda started sinking in CA; though it was quite obvious to most wayyy before then, that Prenda was off their rocker.
      Don’t believe anything you read on that darned internet, kids!!…Especially if it is coming from Jordan’s blog… (IMHO)…(IANAAL) 😉 😉

      • Ha, I wish…

        First off, I would never ever let an innocent person pay a cent on one of these cases. Ever.

        Second, I rarely handle these cases on a “please settle it for me” basis. The vast majority that I’ve handled have been pro bono for young people, poor people, or people with health issues. I’m still happy to do that. There are many attorneys out there who specialize in settling these cases, but that isn’t me. I refer almost all those cases out. I have no desire to run a settlement mill – never have, never will.

        Bittorrent defense makes up about 1% of my practice. Currently it makes up 0%.

        Just keep in mind that many of the attorneys blogging about these cases (often incorrectly) are searching for clients. They’re telling people what they want to hear, regardless if it’s accurate.

        If I wanted more bittorrent clients, I would write about how evil the trolls are, how unfair it all is, and how people are being targeted by a scam. Clearly, everyone is a victim. We’ll run into court and get a Star Trek order! It will be epic! But that wouldn’t be the truth, and it wouldn’t be very prudent for many clients, either.

      • Martha says:

        What is his is mine. Especially when it comes to my man’s privates. That’s just the kind of gal that I am.

    • DieTrollDie says:

      The damage numbers for Doe # 16 are correct. The agreement between parties allows the damages to stand, but Doe # 16 will only pay what was in the agreement (Low to High Range, etc.). Nothing too surprising in this.

      The IPP personnel testimony were needed to lay the foundation. The trial as well as any real investigation has to paint a picture of how you got from A to B to C, etc. The fact that there was no cross does make it easier for Plaintiff not to have to address issues of software reliability, false positive, etc. The issue of the judge not fully understanding the technical details did make it easier for Lipscomb/MM – They know this. Hell, I wonder if Fiore ever found that cave Raulou was living in in Eastern Europe.

      Lipscomb painted the picture he needed – My client’s copyrights are being infringed – My client losses money (suffers damages) – We (client of IPP) detected the defendants public IP address doing the infringement – The public IP address comes back to the defendants – The ISP stated their subscriber records are good – The defendants said this: nothing, denied it, recanted and admitted to the infringement – Forensic exam shows the desktop OS was reinstalled after the notice that Plaintiff wanted to do forensics on it – The forensic exam didn’t find the movies or any record of BT – The forensic examiner believes someone took steps to clean up the hard drives (spoliation) – All defendants admitted to infringing Plaintiff’s works – Two defendant admitted to lying about it – One defendant admitted to destroying evidence.

      The case/trial is not a total loss IMO. Any future cases that actually goes to trial will use this one to as a starting point. The defense attorneys are going to see the holes and test them. The IPP software may not be 100% perfect, but it does seem to work in the basic sense of it did identify the defendant who infringed the movies in question. What it cannot do is point specifically to the actual infringer. That takes additional investigative step which for the vast majority of cases the Plaintiff/Troll is unwilling to do – Costs too much – goes against the business model. The risk that Lipscomb/MM have to face in going to trial is what if one of the 30% fights back and they are unable to drop or dismiss the case? We saw it in Colorado. Open WiFi is still a possibility, even though Lipscomb scoffed at it. I know it is true (happened to me) and so does his expert, Mr. Paige. Mr. Paige said he had a case where a neighbor abused the accused WiFi connection to download child porn. If it can happen once… Even if it is one of the 70% (infringers), he still has to face the simple fact that if an offending computer is remove from the residence and forensic of the remaining systems are clean (no signs of wiping or OS reinstall), they could be in real trouble. If they cannot reasonably infer and show the Doe remove the evidence, they are likely to lose. This is basically what Lipscomb said in the last part of the trial. In a civil trial, it only takes a show of 51%+ to the likelihood to be found liable (and visa-verse). This lower burden of proof standard can be good or bad depending.

      DTD 🙂

      • anodoe says:

        So the bottom line is that defense against MM became quite difficult and risky. And the only hope is that MM would by chance accuse somebody 1) with money to burn 2) with time to spare 3) with no concerns about reputation 4) willing to fight. Ah, and 0) innocent or really, really computer savvy and precautious. And in the end that guy must get really lucky with judge and jury because of 51%. I still think those Exhibits C could be very convincing. What are the chances? So MM is pretty safe here and can carry on with big smiles on their faces. And so they will, no doubts. I would expect a serious expanding of their operations.

        Conclusions are obvious, I think.

        BTW, where did that number about 30% of innocent victims come from?

      • DieTrollDie says:

        I will try to find the document where one NY Troll told the court that 30% of the people he targets (ISP subscribers) are not the actual infringer. Raul? Do you have that case handy???

        As Judge Wright put it, they are exploiting a legal loop-hole. I don’t think it is luck that will be the determining factor, but it sure can help. Bottom line: If you didn’t do it and the only evidence a Plaintiff has is the public IP address from IPP, they have a weak case. That is why none of the cases have ever gone to a full trial. The PA Bellwether was forced on Lipscomb/MM. Lipscomb/MM has changed their operation from generic mass-Does cases , to single Doe cases that appear to be large sharer/downloaders of MM movies. This is a good change overall, but it still doesn’t mean people are being abused.

        DTD 🙂

      • Here would be my questions re: 70%…

        Does that mean the technology isn’t accurate 30% of the time, or does it mean that the subscriber is not the infringer 30% of the time? My guess is that it’s the latter, which would make sense.

      • DieTrollDie says:

        I take it that the ISP subscriber isn’t the offender 30% of the time. It means that Plaintiff has to do something more than threaten the subscriber – depositions, forensics, etc. Otherwise they are missing a logical step – not doing an adequate investigation.

        As far as the technology, Lipscomb was smart enough to show a limited test of IPP – it appeared to work at identifying where (public IP address only) it originated. Until the IPP software has more independent testing (like EnCase and other computer forensic software – which Mr. Paige used), there is going to be questions as far as its reliability. The IPP technology can be used as an indicator, but not as a stand-alone.

        DTD 🙂

      • “It means that Plaintiff has to do something more than threaten the subscriber – depositions, forensics, etc. Otherwise they are missing a logical step – not doing an adequate investigation.”

        Interesting point.

        Part of the issue is that the law sets a low bar for a plaintiff to get into court and take discovery. It’s enough to allege that you know infringement happened, and you have an idea where it came from, to make it into discovery. From there, a plaintiff can depose the subscriber and ask (under oath) “Did you do it? Ok. If not, who had access to your wireless router on such and such a date?”

        The other issue is that civil cases are tried by preponderance of the evidence. This means a plaintiff needs only to prove that it’s “more likely than not” that the infringement occurred (50.0000001%). In civil cases, you can also ask a defendant under oath whether they did it, and lying is perjury. Civil cases are very different than criminal cases. In a criminal case, there is extremely limited discovery, a defendant can plead the 5th, and it’s on the prosecution to prove their case beyond a reasonable doubt.

        Even without direct evidence, and if the defendant testified under oath that they are innocent, I think a plaintiff could build a pretty decent case through circumstantial evidence by proving that the defendant:

        – Knew what bittorrent was and had it on their system at some point
        – Pirated other things like movies, music, e-books, video games, etc.
        – Engages in whatever they claim is being infringed (watches porn online, watches TV online, listens to music online, whatever)
        – Wireless router was secured, and presented no evidence that someone hacked into it

        In which case, the defendant would have to convince a jury that “Yeah, I use bittorrent, yeah, and yeah I watch TV shows online, and yeah I pirate stuff, but I didn’t pirate this one thing in particular.”

        Tough sell in a civil case.

      • DieTrollDie says:

        Yes, my point exactly. Good circumstantial evidence is nothing to scoff at. For the most part, the Plaintiff’s don’t want to expend the time or money to take the additional steps needed to get this information. As MM has changed its model, they are of the belief (my opinion) that the single Does they are going after (multi-movies, extended period, etc.) are well into the 70% grouping. It is not perfect, but on average probably works well for them. If plaintiff could show those things you mention, it could be a tough sell.

        Knowledge of what BT and the TPB is is a joke IMO. It is not as bad of a joke as when Lipscomb asked people if they were a “gamer.” I would love to see a study that shows people who play computer/online games are likely to be a pirate. Admitting to watching porn on YouPorn (Tube) only shows you are human. I understand everything is taken in totality, so of course each case/defendant will be different. Oh yeah, I loved the part of the deposition where they asked the Defendant if he ever went to any of the blog/Web site like mine (will get the exact term from the audio). Yeah, like that makes you guilty.

        I really dislike that Lipscomb referred to “WiFi Hacking” as including someone using a persons open WiFi Internet access point. Nothing was hacked, just unauthorized access. As most of the small office/home WiFi Firewall/Routers have piss-poor logging (if even turned on), it will be extremely hard for a defendant to gets logs once they are notified by their ISP of the subpoena. If Plaintiff sent out DMCA take down letters to the ISP (who would pass it to the subscriber), they would have a better chance of identifying who might have done this. As far a actual WiFi hacking, I know it can happen and have seen people do tests. I know of one person who still has his WiFi Firewall/Router using WEP (very weak WiFi security protocol) because he knows no better.

        DTD 🙂

      • anodoe says:

        “I take it that the ISP subscriber isn’t the offender 30% of the time.”

        I suspect about 90% of those 30% would be cases where infringer is a member of subscriber’s household. That means household computers would carry incriminating info etc. Subscriber’s situation doesn’t seem to be easier here in any significant way.

      • DieTrollDie says:

        It very well could be and I think most Plaintiff’s believe this also. That is why they will threaten so hard. For most parents, if you found out your stupid kid did it, you would pay up to keep him out of trouble – the Plaintiffs know this.

        DTD 🙂

      • that anonymous coward says:

        I think the 30% number is from a court document based on a statement by a lawyer for the plaintiff. (CEG I believe)
        http://ia700805.us.archive.org/6/items/gov.uscourts.nysd.390249/gov.uscourts.nysd.390249.6.0.pdf

  6. Pingback: Reader’s comment: Shame on you Keith Lipscomb and shame on you X-Art | Fight Copyright Trolls

  7. DieTrollDie says:

    13 Jun 2013 Update – Doe #16 and Lipscomb stipulated that Doe #16 would pay $128,350.50 for fees and costs associated with the trial. (Link to document in main body of the post).

    DTD 🙂

  8. John Doe says:

    MM just filed 25 more single Doe cases in Colorado today according to RFCExpress.

  9. Allow me to preface my comments by stating that they are made TO THE BEST OF MY KNOWLEDGE, REPRESENTING ONLY MY OPINION.

    As much as I hate to do this, I would like to do something I rather dislike, and take issue with Jordan’s comment about not understanding CEG (I’m assuming he meant their business practices/model). I think, at this point, it would be fair to say that if we still aren’t fond of his shotgun style approach and the rather nasty comments he made at one time on this blog, he has taken heed of Prenda’s actions and arrived at a method of protecting copyrights that, while not ideal, is far more reasonable than the one used by Mr. Lipscomb and Malibu Media.

    Let me explain, point by point.

    1. By most accounts, CEG TEK is ALLEGED TO BE sending out DMCA take down letters, multiple letters in regard to the same user when applicable, SPECIFICALLY in regard to the IPs of the uploaders. Full disclosure here, I’ve been watching the ALLEGED ACCOUNTS OF his firm’s actions in relationship to other forms of piracy (copyrighted images, movies, games, etc.). I believe that in these cases, Ira’s firm genuinely intends to discourage piracy, but they also don’t mind making a buck while doing so, and he is using a uniform platform across various media (as has been reported, he had representatives at Comic Con). Do I like it? Not really, but I can live with it. Malibu Media is not doing this, as you can see based on the affidavits SJD posted on her site, they are still ALLEGEDLY using the old Hey, settle or we’re going to put your name in the Denver Post for downloading pornography tactic. As much as I don’t like the porn industry in general, I give Ira credit for seeing the error of his ways here, something Malibu Media ALLEGEDLY does not appear to have done, at least in the case I am referring to.

    2. CEG TEK is ALLGEDLY asking for something that could be construed as a reasonable settlement, if some of the accounts I’ve read online are to be believed. $400 is a lot of money to most people, certainly to me, and I wouldn’t consider smut to have any value, but again I can live with a figure like that. Based on the figures that ALLEGEDLY have been tied to Malibu media, and specifically the ones referenced in the Bellwether, I cannot say the same for them.

    3. CEG TEK is TO THE BEST OF MY KNOWLEDGE not trolling these blogs on behalf of their clients, though they ALLGEDLY did this in the past, nor have I seen photos of Ira mugging for the camera. I would wager that, as he is positioning himself as a legitimate Copyright attorney (and courting videogame developers, legitimate film makers, owners of copyrighted image services), he seeks to come across as professional and someone who is decent to engage in a professional relationship with.

    What is my point? There is no right way to do Copyright Trolling, but to make a 1:1 comparison between Mr. Lipscomb’s actions on behalf of Malibu Media and Ira’s on behalf of his clients at this point is laughable. I’m not thrilled with his practices, but he seems to have gotten Judge Wright’s message to some extent, and as you have pointed out we are dealing with the reality of the legal system and he seems to be operating within somewhat ethical boundaries at this point.

    • I completely agree with this comment. I think the approach of demanding a couple hundred bucks via a DMCA takedown notice is the right way to handle these cases. Face it, many of the people accused of copyright infringement actually did it. And I for one believe those who did it should pay. Copyright infringement is, after all, illegal.

      But is it so illegal that it justifies a $7500 penalty? Hell no. $200? Sure.

      But, you say, “$200 is so much more money than the $10 cost of the movie! Why shouldn’t I just have to pay the $10?” Well, think about that. The cost of parking at a meter downtown might be about $2 if you actually pay it up front. If you get caught NOT paying at the meter, can you still just pay $2 when you get a ticket? Of course not. Why would anyone ever pay at the meter if you would never have to pay any more even if you got the ticket. It hurts when you get that $50 ticket for not paying the $2 in advance, but that’s why you pay the $2 in advance! To avoid the hurt.

      But the penalty should still bear some rational relationship to the harm. Would we as a society condone our government charging us a $150,000 penalty for not paying a $2 parking meter? Hell no. Of course not. Same thing with copyright infringement.

      • John Doe says:

        If this were to happen, it would both make the copyright system fair and just AND put the Malibu Media/X-Art and Prenda Law trolls out of business.

        Of course it may require reforming the entire Copyright statute. Barring that, it would require hiring an excellent lawyer to defend yourself, which might cost 10’s of thousands of dollars…in order to get that $200 settlement. Or it would require the trolls to stop trolling voluntarily.

        Unfortunately I don’t see any of that happening any time soon.

      • whitakerlaw says:

        @John Doe: The thing is this is in response to the statement about the CEG business model, not copyright reform. The way CEG works is that they send a DMCA takedown notice to an ISP when they identify a potential infringer. The DMCA takedown notice includes a pointer to a website where the subscriber can just pay the relatively-nominal amount and is released. I’ve seen them in the $200 range.
        And again, I think that model is vastly more reasonable than “I don’t care if you did it, pay me $7500 for a $10 movie”

  10. Tuskin says:

    Jordan Rushie,

    I’m wondering what does your insight say about whether Lipscomb will go after all the Does he dismissed in EDPA from last Spring and Summer as a result of the Bellwether case? Do you think too much time has gone by? Many Does would have gotten new computers, or moved, or destroyed evidence (as no legal action was pending), etc. Do you think he is honest when he told Baylson that he intends only to file cases against the worst of the worst (chronic infringers over many weeks or months) ?

    • DieTrollDie says:

      If you listen to the trial, the judge asks him that question. Lipscomb tell the judge they dismissed all the Does and due to the passage of time, the ISPs would have purged their logs. He has no intention of going after these Does. He will focus on the new single Doe cases IMO.

      DTD 🙂

      • Tuskin says:

        I listened to audio and Lipscomb sure is a weasel that can’t be nailed down. He says there are 16 new cases this year. Single Doe, new worst of worst. He is going to focus on those type of cases going forward. Fiore in the background says there are 41 cases on the docket. They never discuss what will happen to those.

        My interpretation of the ISP log is just that it matches IP address with name and address. There are cases from last year in which they got subpoena, received tje subscriber info and then let time to serve summons expire and then dismissed everyone. Early this year they sent out letter asking for exculpatory evidence to those Does that had been dismissed. The letter said they would use the info to determine settlement amount and/or who to sue.

        It is confusing as to what they do going forward. I am thinking that their new method can not be applied to Does of last year because they would need the log to match up all time periods of infringement (assuming IPP capture these for chronic Does abusers). For Comcast subscribers that log no longer exists. They can’t use a single time of the log because IP addresses are not static and could have changed.

        So, yeah I’m thinking all Does of 2012 in EDPA are not going to get sued. They might get threatening calls or letters but, not sued…… I guess!

  11. The Doubting Doe says:

    Can we set the record straight?

    Repeat a lie one thousand times and it becomes truth”. This quote is attributed to one of the most evil men who ever lived, Dr. Joseph Goebbels, propaganda minister of the Third Reich.

    So when everyone uses that troll testimony, that 30% of IP address at not infringers, why should anyone believe it. And how on earth did the troll come up with such a figure? I doubt via academic, peer review, investigation. How do we know that the real figure is closer to 90% are innocent?

    Problems with the 30% statement is that 70% become automatically guilty and we really don’t know this is true.

    • DieTrollDie says:

      I think the record is straight. One Troll stated this to the court. It is important to show that the Troll method has an error rate and is NOT 100% perfect. Debate the numbers – OK.

      DTD 🙂

    • that anonymous coward says:

      http://ia700805.us.archive.org/6/items/gov.uscourts.nysd.390249/gov.uscourts.nysd.390249.6.0.pdf

      Accepted by a Judge as factual.

      It is better for a guilty man to go free than an innocent to spend a single day in jail.

      The different systems at various points have been claimed to be bulletproof 100% of the time. Like the infamous Steele’s $250,000 software. He went after a nice grandmother, did the standard harassment, and when she contacted the media calling it extortion they called Steele… who quickly stopped bothering her and claimed there had been an error and they had located the correct party. Except if you read what the nice lady had to say, she said there were some young men who lived next door for a period of time. So while the IP might have pointed at her, it was very possible it was someone acting without her knowledge or consent. But that did not matter until the media called him, and they never even said sorry for harassing this innocent woman.

      IP address alone does not get you the infringer. And many of the letters sent out looking to “settle” these claims are predisposed to claiming the account holder is responsible, either by action or inaction, and should pay them.

      Given the bar is more likely than not for these cases, it becomes pointless to offer any defense.
      I’m innocent, never heard of this movie and have never seen it.
      Strike 1 – You have a penis.
      Strike 2 – You’ve watched porn.
      Strike 3 – You might know what BT or TPB is.
      Strike 4 – Your good with a computer.
      Strike 5 – You might have infringed someone else’s copyright. (Which many people do daily without even knowing they are breaking the law).
      Strike 6 – I read websites that talk about these types of cases.
      Strike 7 – (mostly just applies to me) Your known as TAC.

      If MM targeted me I’d have tons of strikes against me on paper, and it would look hopeless to convince a court otherwise.
      The single thing working in my favor is I think girls are icky, and they would have a hard time trying to overcome that hurdle.
      But when the only viable defense is my sexuality, I think we have a problem.
      I do not want to have them going over my hard drives and media and it really should take more than having a penis and paying for a net connection for a court to allow that invasion of privacy to happen.

      • DieTrollDie says:

        Thanks TAC!

        DTD 🙂

      • John Doe says:

        In the mind of the trolls, of you do know about computers, you are the infringer.
        But if you don’t know about computers, you are the infringer.

        If you claim innocence, then you are lying and are guilty.
        But if you admit guilt, then you are definitely guilty and must pay.

        The thing about extortion that I’m surprised more courts aren’t getting is that the person doing the extorting doesn’t care about innocence or guilt of the other party. They use the threat to get money regardless of innocence. Any cop show on TV will teach you that!

        “You’re gonna give your public support to the candidate we want, Mr. Senator, or we will tell the press that you had an affair with a male prostitute.”

        Whether the Senator is innocent or guilty of having sex with a male prostitute, the extortionist can pay one to lie and say he did, thus the threat is real either way.

      • that anonymous coward says:

        You left out if you claim your innocent it must be someone in your household or a guest and somehow you must be responsible for allowing it to happen.

  12. Rumplestilskin says:

    My BS meter spikes whenever X-Art / Malibu Media’s Lipscomb claims home Wi-Fi is secure and hacking should be barred from trial. Sure let’s pretend that pink elephant in the middle of the court room doesn’t exist. He claims it’s too speculative to be allowed into court. How did the case even begin? Pure speculation that an the subscriber of an IP address is the infringer. Pure speculation that the one in the household with a penis is probably the thief.

    Take a look at this link “Top Wi-Fi Routers Easy to Hack” http://tinyurl.com/cyuw5kb

    You really think you are safe read this about your next big headache. http://tinyurl.com/kfkf34j

    One would have to be completely disconnected from the raeal world to believe security against hacking isn’t a major concern. The Friday before Baylson’s bench trial…… President Obama met with Chinese leader Xi Jinping to address the growing need for cybersecurity cooperation between the two countries.

    • DieTrollDie says:

      The possibility of unauthorized use (and/or hacking) of a WiFi Internet connection cannot be easily dismissed by Lipscomb. He will be able to show that it is a lower possibility. It is up to the Doe to show the likelihood is greater than what the Troll states. Lipscomb did a good job showing that for the Bellwether defendants, they did not investigate and re-secure their WiFi Internet connect after they were notified of the activity by the ISP (initial subpoena paperwork). This is a normal activity you would expect an ISP subscriber to do when notified of the activity. The lack of this activity was used by Lipscomb to suggest that the defendants were the infringer. If you are like many others with a password protected WiFi connection, it makes it harder to point to other unknown infringers because they either had the password or compromised the device. As the logs on these small devices are joke, finding the evidence to point to this is a pain. Also, as the date of infringement is long past when the ISP informs you, the logs (if logging is enabled) are likely gone.

      DTD 🙂

      • WDS says:

        I know a civil trial has a different burden of proof than a criminal trial, but it should not be a Doe’s obligation to show that someone else did the infringement, only that there is no proof that he did, and that there is no proof that he has destroyed evidence that he did.

        I read the list of interrogatory questions, and discovery documents that Lipscomb had for Doe 16 and can not believe that his attorney did not object to 90% of them. Given the amount of personal information that most people have on their computers, it should take more than a IP address to force the turning over of the hard drive for inspection by the plaintiff. There is no reason that a troll should get to go through my financial and tax records on no more evidence than an IP number.

      • DieTrollDie says:

        Even with a criminal case, taking an active role in providing exculpatory evidence is key. For a civil case it is even more so – due to the lower burden of proof level. If as you state, if there is no evidence beyond the public IP address or that destruction occurred, it isn’t as that bad. I would still go the extra length and provide more exculpatory evidence. What makes it bad is if (as Jordan Rushie puts it) they do find a BT client, other infringed upon movies/media (Non-Plaintff owned), and apparent unusual drive activity (possible destruction of evidence). If that is the case, the defendant needs to explain it and be believable. Otherwise the jury or court will give more weight to the Plaintiff. We saw this in this case and it led to the settlement agreements.

        I don’t know how easy it would be to limit the interrogatories and forensic examination, but I agree with you on limiting the search to the scope of the evidence the Plaintiff is looking for. It could have been that Doe #16’s attorney allowed the scope to be wide, as his client claimed innocence. Part of what would allow the Plaintiff to do the forensic exam was the fact that Doe # 16 claimed (in the depo) his WiFi Internet connection was secured by a password. Plaintiff then can claim that only a person with the password could have done this. Combine it with a statement that Doe # 16 and his wife were the only ones using the Internet connection and it becomes easier.

        DTD 🙂

      • DieTrollDie says:

        Wanted to mention this in response to the deposition questions. In the second part of the audio recording of the trail (approx at 9:14 – 9:50 minutes) the results of John Doe # 1 deposition was read to the court. At this part John Doe # 1 is asked to –

        “Identify each Web site, blog, or message board, which you have visited, or which you have subscriber, posted to, which refers to, relates to, or discusses Internet Piracy, BitTorrent, file sharing , or which provides information to people regarding suits which alleged people have committed online copyright infringement.”

        I guess with this question/interrogatory, if you visit sites like mine, you are more likely to be an infringer. idiots.

        DTD 🙂

      • that anonymous coward says:

        “Plaintiff then can claim that only a person with the password could have done this.”
        Which is why they have to remove any chance of people hearing that WiFi can be hacked, because it destroys that image in their head.

        People secure their cars and are robbed daily all over the country.
        People secure their homes and are robbed daily all over the country.
        Etc, Etc, Etc…

        @WDS – the courts assume that the evidence is better than we think it is. So the entire burden is on the accused to try and clear their name. If you look at the 7 Strikes I listed for myself above a court/jury would assume I am guilty given the standard used. If not for the I think girls are icky thing it would be a slam dunk.
        The level these cases operate on is he said vs he said, but magic internet smoke and mirrors counts for more because its technology.

      • DieTrollDie says:

        Thanks TAC. I love the point that people have their cars and houses broken into all the time. The only thing with those examples is you usually will have some sort of police report or insurance paperwork to back up your claim. Using the Jordan Rushie example of a car (lic plate recorded) seen fleeing the scene of an accident, the police will come to the owner and question them. Being able to show that the car was in fact stolen before the accident and only recovered later would be great exculpatory evidence. Most users are not going to notice if someone is using their Internet connection unless it impacts their Internet access. As many users have some form of broadband, this is doubtful. Even if Internet access is slow, most people are going to just figure their ISP sucks and deal with it. Being able to set-up and manage a WiFi Firewall/Router is not a skill many people practice; besides setting it up and forgetting about it. I was lucky in that I was able to record exculpatory evidence about unknown systems using my Internet connection. It was post-alleged infringement period, but it shows unauthorized people/systems used my network. The Troll didn’t care about this and just made the claim that I was responsible.

        DTD 🙂

      • WDS says:

        I know as in many situations you can not know absolutely how you will react until the situation actually happens, and I am lucky unlike DTD and TAC in that I have not ever been accused by a troll, either truthfully or falsely.

        Obviously, I would obey whatever court order there was, but I would only “Voluntarily” turn over my computer or hard drive to a court authorized expert with the agreement that his report would state only “Is there evidence that the movies (songs, pictures, whatever) in question are on, or were ever on the computer”, and “Is there evidence that the computer was manipulated in any way to remove any evidence”. Other than that it just isn’t the plaintiffs damn business.

      • Krono says:

        The problem with that line of reasoning by Lipscomb is:

        1) that it assumes the subscriber knows how to secure their wifi
        – Most people, even people that use computers on a daily basis know jack**** about them.
        – Even if they’re otherwise intelligent people. Possessing a high level degree does not give an immunity from barely being able to use the basic word processing, websurfing, and email functions of computers.
        – What they do not understand, they are unlikely to investigate.
        – Seriously, lurk http://en.reddit.com/r/talesfromtechsupport/ for a while, that should give a feel for how incompetent people can be with technology. There’s a reason that tales like these are entirely plausible:

        http://en.reddit.com/r/talesfromtechsupport/comments/1evjy5/had_12_yo_kid_jump_start_a_pos_server/
        http://en.reddit.com/r/talesfromtechsupport/comments/1er3te/the_little_kimmy_who_could/

        2) the subscriber had the desire to secure their wifi in the first place.
        – It’s not a crime to leave your wireless router open to all access.
        – Yes in many ways it’s foolish to do that.
        – Plenty of people still do that. Homeowners for convenience, business owners to provide a service to their customers.
        – Being a business owner providing a service does not exclude you from point 1.

        3) Leaving your wifi open is not a crime.
        – Seriously, nobody has any legal obligation to secure their wifi any more than they are legally obligated to lock the doors to their house or car or shed.
        – Someone else using my open wifi? So what? If my wifi is open, it’s open for a reason. I have no more obligation to change my habits when someone steals my internet bandwidth than I do to start locking my doors when someone walks in and steals my laptop.

        4) We have no obligation to be the copyright police.
        – That’s Lipscomb’s job.
        – Got a DMCA notice that’s about nothing I’ve done, and nothing anyone and my household admits to doing? Bogus request and end of the problem as far as I’m concerned.
        – I have no obligation to add a password or change the password to my wifi (thus requiring the reconfiguration of a dozen devices)
        – I have no obligation to take a couple hours and search through what logs my router may have to see if I can spot an unknown device.
        – I have no obligation to violate the privacy of my family or roommates to search their computers and see if they’re lying to me.
        – For that matter I have no obligation to verify the validity of the copyright on data entering my network than I have an obligation to verify the validity of the copyright on books I purchased:

        http://www.nytimes.com/2009/07/18/technology/companies/18amazon.html?_r=0

        So with all that in mind, the bottom line is that the normal reaction of people is not to spend many hours redoing their home network, change their habits to inconvenience themselves, do a bunch of investigate that violates the privacy of others, quite possibly of other adults, just because Lipscomb says that someone’s downloading his porn at your place. The natural reaction would be a round of “Was this you? No. Was this you? No.”, a conclusion that the claim was BS, and carry on as usual.

      • DieTrollDie says:

        I agree that we have no obligation to be the copyright police, but if you are faced with a threat from Lipscomb/Malibu Media, I would treat it completely different than if CEG-TEK sent you a DMCA “Pay Me $200” notice. If you are the ISP subscriber for one of these newer single-Doe cases, I would take all the precautions to make yourself less of a viable target and reduce the preponderance of evidence. The ISP subscriber is the first stop for Lipscomb. By their estimation, it is you (ISP subscriber) or a member of the residence who is responsible. I doubt that Lipscomb will start a wave of trials based off of this result, but I do think it will make him bolder.

        DTD 🙂

      • OngChotwI says:

        I remember using articles like this to show people that they shouldn’t trust in the lowest form of security on their WAP (Wireless Access Point): (wep) http://www.tomsguide.com/us/how-to-crack-wep,review-451.html (wpa) http://www.tomshardware.com/reviews/wireless-security-hack,2981-6.html Open but limited to just a few MAC addresses is bad, too. Fully open means the neighbors will leach your bandwidth, and you’ll be blamed for anything illegal they download. (Leaching is the only reason people I’ve talked to were interested in locking down their wifi access.)

        A developer of an online game that banned people based on their ip#s as well as their logins once asked me to setup a copy of Wingate and play the online game through the wingate proxy rather than direct.. and show the ip#s of the wingate proxy and my system. (Plus traceroute to the game server.) I’ve yet to see any mention of an infected machine with an open proxy being the source of an innocent person being targeted.

      • Krono says:

        @DTD

        It’s not a bad idea to take steps to secure your router if you start getting notices. That’s more a function of ensuring for your own security that someone unknown is not on your network. Unfortunately the problem goes back to whether the subscriber is willing and able to secure their router in the first place.

        Furthermore, assuming that securing your router cuts off the actual downloader, that does not guarantee that Lipscomb will not come after you. He can just claim that after receiving the subpoena, you stopped downloading and destroyed the evidence. Try to claim that someone else was using your wifi without your knowledge and the real reason it stopped is simply because you secured your wifi? We saw with the lead up to this trial that Lipscomb is perfectly willing to to attempt to exclude all discussion of wifi “hacking” of all types, which seems to him to include people logging onto open wifi, people logging onto poorly secured wifi (e.g. that has “password” as the password), and actual hacking. So even if you’re innocent and end the problem(from your point of view) by securing your wifi it’s unlikely to make Lipscomb go away, nor will it necessarily help you in court.

        Then there’s the issue that Lipscomb wants your wifi to be secure as it makes it easier on him. Then he doesn’t have to go with dubious lines of argument they didn’t try to secure their wifi so therefore they’re the pirate, or try to get discussion of unauthorized use of the wifi banned from trial. He can just say “See! See! Their household is the only one that has access to their wifi so it must be one of them!” You may or may not wish to risk making it easier for him in this manner. It likely won’t deal with false positives either.

        True downloading recorded from your network while it’s secure does increase the odds that it is someone in your household. Then it goes back to “we are not the copyright police”. If we aren’t legally responsible for someone (roommates, adult children, etc), then it’s not our problem to get them to stop, it’s Lipscomb’s. If he’s already filing suit it’s not like he’s going to stop just because we convince them to stop anyways.

      • DieTrollDie says:

        Thanks Krono. I’m working on a post on this topic right now. It is true that no matter what you do, the Troll will likely just claim you destroyed evidence. If it came down to it, I would rather have him make this baseless claims then hand him the ability to show that once notified the Doe did nothing.

        Yes, Lipscomb wants to hear that your WiFi Internet connection is password protected. That fact makes it easier for him to claim that it is more likely that an authorized person with the password is the infringer. They know how hard it will be to show that someone abused your Internet connection – router logs for home devices are very limited. The fact that they DO NOT send out DMCA notices to the ISP of the subscribers is noteworthy. What a great way to get people to possibly stop. If they send multiple DMCA take-down to the same subscriber, the ISP is going to take some action to stop the activity. Failure to do so opens up the ISP to possible legal actions because they could lose their “Safe Harbor” protective status. It also allows the ISP subscriber to investigate while the activity is fresh and logs may be present.

        DTD 🙂

  13. FormerDoe says:

    Ironic that Lipscomb submitted in his facts statement to Baylson that X-Art was hacked.

    • that anonymous coward says:

      Having not seen it and little desire to, does it say anything beyond “We was hacked!”?
      Say a notarized statement from a firm that did the recovery and repair.
      Being hacked is most likely something outside the scope of the average porn website operator, so someone with a degree or something would be required to fix it and could say exactly what was done…
      But then I live in a crazy world where people who make claims need to have as much, if not more, evidence than they demand from others.

      • FormerDoe says:

        I’m not sure if Baylson signed off yet on the facts that Lipscomb wanted entered following the trial. Clearly some evidence should be presented regarding the hacking.

        The hacking seems a fairly irrelevant “fact” relating the trial at hand, though. I wonder if it’s a “cover IPP’s ass” thing since people know that the files have been hitting the torrents before or at the same time they show up on X-Art, which looks damn suspicious.

      • that anonymous coward says:

        I do not see it as irrelevant at all.
        They allege that the only reason this material is available is because they were hacked.
        If this claim is shown to be false, one could then wonder how it actually happened… and as we have seen with other copyright lawyers/firms there is compelling evidence that they create the opportunity for infringement to profit from it.

        A lawfirm once put in their complaints that the IP address would lead only to the infringer. They then ended up before a Judge demanding the court force a target into turning over all computers and computing devices in the home and lists of visitors. So they went from we can prove this to we lied to the court in our original statement now let us get evidence.
        http://arstechnica.com/tech-policy/news/2011/09/p2p-lawyer-ip-address-not-enough-let-me-search-all-pcs-in-the-house.ars
        And that firm is still in business… kinda… Judge Wright was sorta angry with them.

        The legal system has a bad history of handing lawyers a pass when something is questionable and no where near as understanding to others caught doing the same thing.

        Doe 16 lied to the court and the Judge went wild, the other side lied as well why should they get any less? Of course I think they could get more being officers of the court and such.

    • WDS says:

      Apparently it is not possible to keep X-Art’s working server secure from Hacking, but it is totally unlikely and testimony should not be allowed about the much easier hacking of someone’s Wi-Fi Connection.

      • You can call me Roy says:

        Well you see gamers with a penis are much smarter at securing their network than X-Art, aka Malibu Media, aka Collete Pelessier Field, aka Brigham Field. aka Copyright Porn Trolls.

  14. FormerDoe says:

    Baylson included the hacking, without comment or questioning, as testimony presented by X-Art in the report he just issued:
    “Twice in 2013, unknown third parties hacked into Malibu’s servers and put its movies onto BitTorrent prior to the time that these movies were released onto Malibu Media’s website. These incidents cost Malibu thousands of dollars in lost subscription revenue. Malibu now encrypts its movies prior to releasing them, and these enhanced security features cost Malibu approximately $15,000 a month. Nonetheless, they do not stop the infringement from occurring once the movie has been unencrypted and then viewed. All it does is stop the theft of its movies prior to release.”

    I still can’t understand why they aren’t watermarking these files to find the seeder. Well, actually I can… they rely on IPP for their forensics and IPP has no interest in trying to stop the seeding.

  15. unknown third parties hacked into Malibu’s servers - TWICE already in 2013! says:

    “Twice in 2013, unknown third parties hacked into Malibu’s servers and put its movies onto BitTorrent prior to the time that these movies were released onto Malibu Media’s website. Malibu NOW encrypts its movies prior to releasing them (cost Malibu approximately $15,000 a month. invoice, please?) Nonetheless, they do not stop the infringement from occurring” They just started doing something pro-active prior to that time it’s all been re-active. Also if they know they’ve been “hacked” then they also have the information necessary to locate the culprit. Hmmm…maybe their “super duper IP tracking company with their 100% impeccable forensic tracking software, related technology and their computer investigators” IPP LTD can “track” the “hacker”??? Just a thought…

  16. John Doe says:

    German judge says porn is not copyrightable:
    http://derstandard.at/1371171159107/Deutsches-Gericht-Pornos-nicht-urheberrechtlich-schuetzbar

    (If you don’t speak German, try in Google Translate)

    It’s for Malibu Media/X-Art. How ironic.

    http://www.heise.de/newsticker/meldung/Urteil-Kein-Urheberrechtsschutz-fuer-Pornos-1908794.html

    Movies listed are X-Art movies.

    Here’s the ruling from the Munich district court: http://www.damm-legal.de/print.php?id=6199

  17. DieTrollDie says:

    FYI – Archive docket and some documents from a Malibu Media/Lipscomb case in Florida (1:12-cv-22768-PAS). The judge dismissed it with prejudice and the Doe/Attorney motioned for fees and Costs. Show what a “Nice” guy Lipscomb is. He makes a huge mistake in going after this Doe with crap evidence and doesn’t have the brains to pay up and lessen the damage. Instead he tries to get the Doe to “walk away” after he spent over $17K to fight this. Tries to scare him with the possibility that he could lose everything. Don’t think he is like Prenda??? He isn’t that different in my opinion.

    Docket Archive – http://ia600800.us.archive.org/1/items/gov.uscourts.flsd.404544/gov.uscourts.flsd.404544.docket.html
    Order Dismissing case – http://ia600800.us.archive.org/1/items/gov.uscourts.flsd.404544/gov.uscourts.flsd.404544.40.0.pdf
    Motion foe Fees/Costs – http://wp.me/a1OhOw-1mz
    Exhibit A (Emails from Lipscomb) – http://wp.me/a1OhOw-1my
    Exhibit B (What Lipscomb whats – Production of Ddocuments – crazy list) – http://wp.me/a1OhOw-1mx

    DTD 🙂

  18. 2013 says:

    From Torrentfreak “Porn Films Don’t Get Copyright Protection in Germany, Court Rules”
    http://torrentfreak.com/porn-films-dont-get-copyright-protection-in-germany-court-rules-130701/

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