Copyright Troll Malibu Media/X-Art AGAIN Refused To Examine Exculpatory Evidence, 1:13-cv-03184 (CO)

21 Aug 14 Update

Some additional information made it my way after the article was posted.  I cannot validate it, so use you own judgement.  But I will say it does sound very plausible.  Additional information is this color (below).


The following closed Malibu Media/X-Art case is interesting in for two reasons.

  1. What it “Doesn’t” say.
  2. For highlighting the normal course of action for Malibu Media.

The case is a standard Malibu Media copyright troll case in Colorado (1:13-cv-03184), in which a single public IP address/John Doe was sued over allegedly downloading/sharing 12 Malibu Media/X-Art movies.   Complaint_03184(CO)   Complaint_IP_12Movies_03184(CO)   Complaint_12MoviesReg_03184(CO)   As this is a Colorado court, Troll/Plaintiff had no problem obtaining early discovery and getting a rubber stamp of approval from the court based off of questionable documentation from some of our German “friends.”   Discovery_MFR_03184(CO)   Decl_Tobias_Fieser_03184(CO)   Discovery_Order_03184(CO)

Troll_DM1Now after the ISP subscriber information was released on 20 Jan 14, Troll Jason Kotzker followed the standard Malibu Media course of action.  If you have been following these cases, you will know that Malibu Media does not generally send out settlement demand letters.  They let the ISP subscriber start the process by – 1) Contacting Troll Kotzker directly; 2) Hiring an attorney who contacts Troll Kotzker; or 3) Letting the ISP subscriber ignore the matter for a time.

On 20 Mar 14, Troll Kotzker amended the complaint to name the ISP subscriber as the defendant.   A summons was also issued at this time.  One day after filing the amended complaint, the Troll requested an extension of time in which to serve the defendant. The court granted the extension out to no later than 21 Apr 14 (3 months since receiving the ISP subscriber information).

True to Troll form, they failed to show the court that they serve the Defendant with a summons/complaint by 21 Apr 14.  On 23 Apr 14, the court issued a show cause order giving the Troll TWO days to explain why the case should not be dismissed. This was a bit of a shock to me as the CO courts have been a Troll favorite for some time. Troll Kotzker then got off his @$$ and filed the paperwork showing the Defendant had been served on 16 Apr 14.  NOTE: I assume the Defendant hired Christina Saunders, Sparkman Foote Minor LLP, to represent him after he was served.   ShowCause_03184(CO)   Def_Served_03184(CO)

On 5 May 14, Defendant filed an answer with the court.   Def_Answer_03184(CO)   The answer is a basic denial with Eight Affirmative Defenses (MISUSE OF COPYRIGHT, ONE SATISFACTION RULE, NO VOLITIONAL CONDUCT, DOCTRINE OF EXHAUSTION, INVALIDITY OR UNENFORCEABILITY OF COPYRIGHT, DE MINIMUS INFRINGEMENT, INJUNCTIVE RELIEF, and FAIR USE).  I think I will add this one to my “Answer Page.”  The first affirmative defense best describes the BT Copyright Trolling business model and lets Troll Kotzker and Troll Lipscomb what is in store.

 First Affirmative Defense: MISUSE OF COPYRIGHT

Plaintiff’s claims are barred by the misuse of copyright. Plaintiff intends to elicit settlement funds from Defendant, rather than prevent infringement of its copyrights. Moreover, Plaintiff has developed and engaged a litigation centric business model, whereby Plaintiff tracks BitTorrent sites in order to locate IP addresses, which may lead to a potential copyright infringer, in order to generate income for the alleged downloads rather than use this as a method to stop infringements. In doing so, Plaintiff has illegally extended its monopoly beyond the scope of copyright and violated public policy underlying the copyright laws.

On 5 May 14, a proposed scheduling order was filed with this “notable,” but otherwise unsurprising report of Troll/Plaintiff refusing to look at the exculpatory evidence – Defendant’s computers.   SchedulingOrder_03184(CO)

Defendant has made several attempts to settle this matter with Plaintiff, and in doing so, has offered Plaintiff exculpatory evidence and the ability to access Defendant’s electronic capable devices, but to date, Plaintiff and Defendant have not reach mutually acceptable settlement terms. The parties believe that early neutral evaluation or a settlement conference facilitated by this Court would help parties in promptly settling this case without incurring further unnecessary cost and expense.   {My Emphasis}

The next interesting document is a report on the 13 May 14, Scheduling and Settlement Conference.   SS_Conference_03184(CO)   The conference only lasted 28 minutes, in which both sides sides agreed to settle.  The unfortunate part of this conference is that the portions in which the Defendant and his wife were questioned by the judge, as well as the settlement terms were sealed.

Additional information – I have been informed that the Defendant brought the hard drive from their computer to the conference.  For some reason, Troll Kotzker did not want take it for examination.  Surprised???  Also that Troll Kotzker got to have a nice conversation with the judge behind closed doors – I don’t think was a good one for Troll Kotzker. 

On 20 May 14, the judge signed the proposed stipulated dismissal (With Prejudice), in which both sides cover their own costs and fees.   Order_Dismiss_03184(CO)

This case is clearly indicative of Troll/Plaintiff who is engaged in a systematic business model to misuse the Copyright Law (My Opinion) in order to generate income.  I can only hope the CO court eventually starts to see this and put a stop to it.  I’m not too hopeful of this as the court decided to seal the interviews it conducted of Defendant and his wife.  I understand sealing the settlement portion, but what is the harm of letting the world see what these people had to say???  I’m sure once Attorney Saunders got involved, she made it clear to Troll Kotzker that the Defendant and his wife didn’t do this, their computers would validate this, and that fighting this would be a no-win for them.  The fact that Troll/Plaintiff refused to examine the systems indicates a bully trying to force a settlement by increasing defense attorney fees.  The fact that the Defendant will incur fees is disgusting in my view.  Troll/Plaintiff did NO real investigation prior to naming/serving the Defendant.  The reckless naming/serving of the Defendant was based ONLY on the fact he was the ISP subscriber (my opinion) and that he did not agree to pay approximately $9,000 (My estimate based on 12 movies X $750) to make the law suit go away.

From this case you can see the Copyright Troll/Malibu Media/X-Art playbook.

Monitor Malibu Media/X-Art torrents – Collect minimal data showing the public IP shared Plaintiff’s works – File a law suit – Seek ISP subscriber information based off questionable companies and support personnel – Wait for ISP subscriber to initiate contact – Seek extensions from the court to serve a defendant – Name/serve a Defendant at the last moment – If summons is answered, work out a settlement (payment to Troll) – If summons is ignored, seek a default judgment – Depose ISP subscriber and other residents – Conduct forensic examinations of systems – Avoid depositions of Colette and Brigham Field – Avoid depositions of IPP personnel – Seek a settlement OR a walkaway deal.

Some people may wonder why a truly innocent Defendant would not take this to the bitter end.  Sounds simple, but until you (as a Defendant) find an attorney willing to work for free, you risk ending up with a HUGE legal bill!  Yes, the Copyright Law does allow for a prevailing side to motion for fees/costs, but that does not mean a court is going to grant it or the exact amount the attorney billed for.  Even after an award from the court, I would expect a hell of a time trying to collect from the idiots.  See this FightCopyrightTrolls article on trying to find the Prenda Law money.  We would all love to see these bozos get put through the legal wringer, but the costs and stress involved can be very high.  In the very recent case of Elf-Man LLC v. Defendant Lamberson, 2:13-cv-00395 (WA), the defense bill is up to approx. $200,000!!!  And this case never really made it into full discovery, much less a trial.  Right now we are waiting to see what Judge Rice does.   The Trolls understand the costs and use it to force defendants to settle simply out of economics – justice in no ways plays a part.  What is really disgusting is the courts in some jurisdictions (CO & IL) know what is going on and decide to do nothing.  The prevailing view is, “Well, that is our legal system, if you don’t like it, change it.”  The little people cannot change it and the courts themselves have the responsibility to police themselves and clean up their own messes or slap down those who would make a mess in it.

DieTrollDie 🙂  “You know how you get to Carnegie Hall, don’t ya? Practice.  {Lt. Aldo Raine – Inglourious Bastards}

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

One Response to Copyright Troll Malibu Media/X-Art AGAIN Refused To Examine Exculpatory Evidence, 1:13-cv-03184 (CO)

  1. Guest says:

    For all the huffing and puffing about the 75% accuracy rate and unquestionable accuracy of their evidence, Malibu Media has been consistently quiet about showing the evidence.

    Why so quiet, Maurice?

Leave a Reply

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

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

Twitter picture

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

Facebook photo

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

Google+ photo

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

Connecting to %s