When I read documents from the various Malibu Media/X-Art/Troll Lipscomb cases, I’m reminded of the quote from WC Fields, “Never Give a Sucker an Even Break.” In my opinion Malibu Media considers all the people they target as pirates (AKA: suckers) and they don’t deserve an even break. By saying this, some may claim I must be a pirate or “pro-piracy.” As I have stated over and over again, I’m not “pro-piracy,” I do not condone copyright infringement, and I ask people who are doing it, to stop.
The fact that copyright infringement occurs does not justify the running of these law suits (My Opinion). One major problem with these law suits is that IF Malibu Media (and the other Plaintiffs) do not play “hard ball” against ALL the Does, it shows a weaknesses to be possibly exploited by other Does.
Based on the general nature of these cases and how the initial IP address evidence is collected, there are going to instances where the ISP subscriber (or family members) are not the offender. It is ridiculous for any Troll/Plaintiff to claim that their process is 100% accurate as to identifying the offender – That is PURE BS. If it is not 100% accurate, then playing “hard ball” against ALL the Does is going to catch up with them eventually. This is where the quote of WC Fields comes in – Giving an obviously innocent Doe a break is not part of their business plan. I wonder if Troll Lipscomb has gotten to a stage in his operation where he is taking this all too personal – Doing that will cloud a persons judgment.
Even if he truly believes a Doe is the infringer but lacks the evidence to back it up, why push so hard? Every poker player knows you may be able to bluff sometimes, but eventually it isn’t going to work. Even if he gets a Doe to eventually take a “walk-away” deal, he has wasted funds AND rest assured the knowledge of what they did is spread across the Internet. Keith Lipscomb – don’t fool yourself into believing you are preventing other Does from fighting. Your “winnowing” process is not fool-proof and it is only a matter of time.
The following Malibu Media case is interesting because it could come back to bite them. More to come on this one. The case is 3:13-cv-00204, initially filed on 14 Mar 13, in the Northern District of Indiana. I haven’t gone through the entire docket, but someone was nice enough to RECAP the First Amended Complaint (FAC), Malibu Media Movie list, “Exhibit C” list, Defendant Cooper’s Answer, and the Initial Disclosure by Defendant Cooper. FAC_00204(IN) FAC_EXA_00204(IN) FAC_EXC_00204(IN) CopyR_Reg_00204(IN) Answer_00204(IN) Init_Disclosures_00204(IN)
In the FAC, Plaintiff alleges Cooper used BitTorrent to download and share 16 registered Malibu Media movies between July 2012 and February 2013. They also recorded 10 pages of other media (movies, pictures, software, etc.) being shared via BitTorrent on Defendant Cooper’s public IP address (Sep 2012 – March 2013). On 31 Oct 13, Defendant Cooper (via Attorney Willaim Beyers) filed his answer denying he committed the copyright infringement.
Now based on the initial disclosure (31 Dec 13) from Defendant Cooper, it appears the discovery phase has started. Defendant Cooper informs Plaintiff that he and his wife (assuming his wife) will testify they are not the infringers. He also states he has two computers in the residence – a desktop and a laptop. He states in January 2013, the hard drive in the desktop system “failed” (was destroyed), and a new one was installed. He is working to have copies of the hard drives made available to Plaintiff. I assume the copies of the hard drives will be sent to Malibu Media’s forensic consultant, Patrick Page, Computer Forensics LLC, for analysis.
This disclosure of a hard drive failure is bound to make Troll Lipscomb suspicious of spoliation (evidence destruction). Now as the failed hard drive isn’t available, they will not be able to examine it to determine if anything is recoverable. They will be able to examine the laptop and new desktop hard drives. The laptop likely cover the entire period of infringement, as well as the date associated with the “Exhibit C” files. As Cooper states the hard drive failure happened in January 2013, claims of spoliation will be harder to back up. He was likely unaware of this case until April/May 2013 time-frame.
The new hard drive will cover parts of the downloaded/shared Malibu media files, as well as parts of “Exhibit C” files. This leaves Troll Lipscomb/Malibu Media in a bit of a “pickle.” If the depositions and forensic analysis fail to disclose any direct evidence, they will have a hard time showing infringement or claiming spoliation – the hard drives did cover the periods of infringement. The best they will be able to do is claim Cooper did not provide a copy of the offending system (possibly claim he removed the offending system/evidence). Without any evidence to back-up this belief, they will look foolish to push the issue.
For this case, the forensic analysis will still be important. In addition to the direct evidence (MM Movies, BT client, .Torrent file, Exhibit C files, etc.), Plaintiff will verify the claimed installation date of the new hard drive/Operation System (Install Date). They may also check with Microsoft (I assume it is a MS OS) to see when the OS was registered with Microsoft (Date/Time) – was it installed in January or after Cooper was notified of the case?
They will also look for any programs with the ability to wipe files/folders/hard drives, as well as encryption programs that could be used to hide evidence. Note: On page 1 of Exhibit C is the program “CCleaner Professional and Business Edition v3.28.1913 Incl Crack + Key [TorDigger]” (5 Mar 13) – this is the program “Crap Cleaner” (http://www.piriform.com/business/ccleaner-business-edition), which besides being used securely wipe the free space/unallocated space of a hard drive, can help keep a system running optimally.
I haven’t seen any claim from Cooper that someone else used his WiFi Internet connection, but it is a possibility. There are multiple houses near Copper’s residence which could have accessed his Internet connection, with or without a range extending antenna. Troll Lipscomb will claim that due to the long-period of infringement, this theory is baseless. Of course he is wrong – it might be unlikely, but it is certainly not baseless. I can point out a couple of criminal child pornography cases where a neighbor’s WiFi Internet signal was used to download/share media. The victims in these cases did not know what was happening on their network until law enforcement raided their residence.
As Malibu Media does not send out DMCA take down notices to the ISPs who own the infringing public IP addresses (who would then forward it to the ISP subscriber – like they do for CEG-TEK and Rightscorp BMG), the subscriber doesn’t have the opportunity to investigate and stop the activity from happening until months after it was observed. In this case, Malibu Media started recording the activity on 26 Jul 12 – they didn’t stop monitoring until 6 Mar 13. The case was filed on 14 Mar 13 – Over 8 months of activity occurred and Cooper & his ISP were never notified. If they had only monitored for just 30 days, they would have record five Malibu Media movies – Note: Exhibit C files were not noted until 10 Sep 12. So for over 7 months, Plaintiff/Troll Lipscomb allowed their movies to be continued to be shared/downloaded illegally (via BT) and did nothing to stop it. Why??? Because if they actually try to stop it, they will reduce the number of people they can file law suits against and generate settlements. Also, a case with 16 movies is likely to get a larger settlement, verses only 5 movies. Assume Malibu Media accepts $750 per movie – 5 movie = $3,750.00 – 16 movies = $12,000.00.
Note: I do not know this defendant or the details of his case (besides what is publicly available). I will play “Devil’s Advocate” and say even if Cooper did it (begging your pardon Mr. Cooper), the actions of Troll Lipscomb/Troll Nicoletti/Malibu Media are clearly suspect and designed to most effectively follow the business model of “Copyright Trolling.” Sorry Keith, you may not like the title, but you have surely earned it. Take a bite.