Malibu Media (X-Art) And The Ouija Board Forensic Analysis – Butler case – 1:13-cv-02707 (CO)

First I want to draw attention to the recent Fight Copyright Troll article concerning Malibu Media/X-Art’s Prenda-like behavior – Malibu Media blackmail: deep in the Prenda territory.   Archive Docket   The article shows how reluctant the Troll/APMC/Plaintiff is to release a Defendant for fear that others Defendants will be emboldened to fight back.  Troll/Plaintiff claims the Defendant in this case destroyed his computer shortly after being notified of the law suit.  This claim is based on the fact that their ‘Expert,’ Patrick Paige failed to find any of the following direct evidence on the computer.

  • Evidence of Plaintiff’s movies
  • Evidence of ANY BitTorrent program
  • Any Internet Web searches for Torrents (Malibu Media/X-Art or ANYTHING else)
  • Evidence of data destruction (deletion/wiping) of the hard drive

The forensic report by Patrick Paige is SAD in format and especially content.

The best Troll/Plaintiff could do is state the follow. “I do not know if this is the only computer Mr. Shekoski used at his residence.”  NOTE: When this is the first thing a forensic report mentions, you can bet they failed to find any direct evidence.  Mr. Paige states he did find an old Peer-To-Peer (P2P) file sharing program (Limewire) and over 200 references to music files (Non-Malibu Media/X-Art) that were search for and allegedly downloaded.  Mr. Paige’s main report omits the dates of these Limewire files: 2009 – 2010 (Four+ Years Ago! – see the attachment to the forensic report).  It is also worth noting that Mr. Paige’s report states nothing about any findings of data destruction.  Still with all this, Troll/Plaintiff has the gall to threaten the Defendant with further expanding the case (to include two other family members) unless Defendant agrees to walk-away AND waive his ability to seek attorney fees and costs.  Would you consider this Blackmail??? – My opinion YES.

Nonetheless, rather than agreeing to dismiss its case as required by the July 21, 2014 Order, Plaintiff’s counsel attempted to use the “evidence” of Amber Shekoski’s file sharing to bully Defendant into a coerced settlement whereby Defendant would agree to pay a $15,000 judgment if his IP address were ever again to be used for copyright infringement, and that Defendant would give up his right to recoup his costs and attorneys’ fees under the provisions of the Copyright Act. (My Emphasis) {ECF#22, Page 3, Section 6.}

Butler Case – Colorado

This brings me to another similar Malibu Media case of interest – Malibu Media LLC v. Butler, case #1:13-cv-02707 (CO).  Here is my previous article on it.  This is the case where Troll/Plaintiff was unable to conduct a forensic analysis because the computer in question was not under the control of the Defendant.

Specifically, while acknowledging that he was in possession of a Microsoft Dell Mini during the preceding two years, Defendant states that he is no longer in possession of any computer aside from his cell phone. Therefore, Plaintiff needs additional time to conduct further discovery as to the location and condition of the hard drives. {ECF# 38, page 1}

On 12 Aug 14, Troll/Plaintiff requested a 90 day extension to serve its “Expert” witness report.  The judge only gave Troll/Plaintiff 30 days (10 Sep 14) to serve expert witness reports – The judge also made it VERY clear that Plaintiff failed to show good cause for the extension request.  The Troll said it needed 90 days to review what Defendant told them concerning the disposition of the computer he previously had.  The judge clearly did not think 90 days was needed to check out Defendants story – Examples: “The computer was stolen” – police/insurance reports; “I donated the computer to Goodwill” – donation receipt & check with all the Goodwill location for it; “The computer broke and was thrown in the garbage” – check with his garbage company; “I gave the computer to friend” – check with the friend.  As we have not heard any allegations of spoliation/data destruction from Troll/Plaintiff, that likely means they are trying to determine how to get out of this mess.

I don’t know what Mr. Butler’s response to the initial discovery questions concerning his computer was, but I think an answer of “I don’t have a computer anymore,” Or “It was disposed of this date,” would have immediately generated Troll follow-up questions to locate and attempt to recover it.  Waiting months to make a request for more time is sloppy and telling.

New Case Filings Since The Last Article

PLAINTIFF’S SECOND UNOPPOSED MOTION FOR EXTENSION OF TIME WITHIN WHICH TO SERVE EXPERT WITNESS REPORTS (10 Sep 14)Please Note: This motion was filed on the last day Troll/Plaintiff had to file its Expert Witness Report – Go Figure!  The Troll made a second request for more time (60 days – 10 Nov 14) because it is still looking for the missing hard drive.   Doc_43_02707(CO)

MINUTE ORDER (11 Sep 14) – The judge granted the requested 60 day extension (10 Nov 14) to serve its Expert Witness Report.  Discovery will be completed by 16 Jan 15.   The Colorado courts are notorious for allowing Trolls to string along cases for stupid reasons (my opinion).    Doc_45_02707(CO)

ORDER AFFIRMING AND ADOPTING RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE (16 Sep 14) –  Doc_46_Order_02707(CO)   The judge affirmed the striking of the following affirmative defenses:  Failure to State a Claim, Assumption of the Risk, and Intervening Cause.  The following affirmative defenses were not stricken and could pose Troll/Plaintiff some discomfort: Estoppel and Copyright Misuse.  Even with the three affirmative defenses stricken, Troll/Plaintiff is going to have a hard time with no hard drive to examine.  Funny – I think Troll Lipscomb even told the PA Bellwether court that he never thought these cases would reach a trial because defendants would simply hide or destroy the computers/evidence (Closing Statement).  Audio Recordings from the PA Bellwether Trial

Part 1

Part 2

Patrick Paige Testimony

Lipscomb Closing Statement

Ouija_PaigeSo Troll/Plaintiff now has until 16 Jan 15, to complete Discovery.  Maybe Patrick Paige can conduct his analysis on the missing hard drive via a Ouija Board – That report would be as entertaining as the other reports we have seen from him.

SunSentinel_Paige_PillsNow let’s make this clear – I do have faith in the computer forensic software used.  Where my faith is lacking is in Mr. Paige’s ability to provide a “non-biased,” non-hired gun,” analysis, and report.  Any professional computer forensic examiner would simply conduct the analysis and provide a non-biased report on the findings.  The lawyers are the ones who determine how to use the findings.  To do otherwise hurts his credibility and calls into question all that he states.  Not that Mr. Paige’s credibility wasn’t already in question based on a 9 Mar 11, Sun Sentinel article.  It appears Mr. Paige left the Palm Beach Country Sheriff’s Office approx. 8 months after this article posted.  I assume he decided on early retirement from the Sheriff’s Office.  Very embarrassing for the Sheriff’s OfficeNote: Mr. Paige, please contact me if you think any of this is unfair or inaccurate.  🙂

Hydrocodone_853_watsonUnless Troll/Plaintiff can reasonably claim the computer was destroyed or has been withheld by Defendant, their claims hinge only on what “Other” (non-Malibu Media/X-Art) files were recorded as being shared via BitTorrent by Defendant’s IP address.  That is ONLY if they can tie them back to the Defendant and/or the missing computer in question.  Not an easy task when Troll/Plaintiff does not want to spend the money on an investigation.  I expect there will be some sort of attempt to get Mr. Butler to accept a walk-away deal – freeing up Troll/Plaintiff from having to pay the Defendant’s attorney fees/costs.  Good luck on that one Trolls!

DieTrollDie 🙂   We took morphine, diamorphine, cyclizine, codeine, temazepam, nitrazepam, phenobarbitone, sodium amytal, dextropropoxyphene, methadone, nalbuphine, pethidine, pentazocine, buprenorphine, dextromoramide, chlormethiazole. The streets are awash with drugs you can have for unhappiness and pain, and we took them all. Fuck it, we would have injected vitamin C if only they’d made it illegal.  {Mark Renton, “Trainspotting”}

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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18 Responses to Malibu Media (X-Art) And The Ouija Board Forensic Analysis – Butler case – 1:13-cv-02707 (CO)

  1. Anon E. Mous says:

    I said this over at FTC and I will say it hear as well. never knew that Malibu and it’s associated trolls were such big fans the Prenda gang that they follow one of their true strategies when their was trouble on the horizon I guess when their is trouble looking your way you employ all sorts of different methods to get out, but looks like Malibu and local trolls love Prenda’s Deny, Deflect, Delay tactic.

    In my opinion they should have dropped this and walked when the Judge narrowed down the terms of the discovery and how it would be dealt with and where the discovery would be limited to in the computer search for infringement.

    So instead of using the opportunity then to try and get out, the trolls still clung to the hope that they would find something to still be able to squeeze some cash out of this, it is also why in my opinion that innocent people are dismissed statement is all just bullshit, this case pretty much furthers up that very point if you ask me.

    The fact that the Judge narrowed the questions and what the finding could say and what they were based on is telling itself in my opinion. It would seem from my take on this that the Judge must have looked at the filings and the defense concerns with Malibu/ Trolls desire to go on a fishing expedition and had some serious concerns with the avenue Malibu was pressing to be bale to take and thought that was overly broad and more than out of the scope of what would be fair.

    With that said I would be of the thought that Malibu/Trolls various and escalating ideas and wants at what it can look at and how seem to be more of a tactic to pressure the defendant to settle. Honestly the methods are no better than what you would see with some back room collection agency employee who tells you all the way they will get you and could ruin you if you dont pony up now , now, now..

    Paige’s original report back is what we usually see in any case where they examine the computer., there is evidence of other infringement, we didn’t get all the media connected to this computer, the defendant lied, they destroyed hid evidence, bla bla bla… You’d swear like the original complaint filing, the computer examination discovery finding report are boilerplate as well ( my opinion of course )

    Let’s hypothesize for a minute here; If these reports are boilerplate with just the odd variation
    of files and torrent name etc etc thrown in, it would explain why they are having an issue of producing a report that answered the Judges narrowed down questions of what she asked to see the answers based on the examination.

    Nicoletti’s “generous” walk away deal is almost laughable in my opinion. This is nothing more than Malibu and troll trying in desperation to save face and come with anything to wave as a victory. While it would give the defense what they should have got from the beginning, I would hope they reject it outright for what it is a desperate and last ditch effort to save face.

    As for Nicoletti’s claim that they will change and add in the discovery of the lime wire torrent software and the 35 files…Please…desperation be the name. There is no way in the world that this Judge , who already narrowed down the scope of the discovery, is going to allow something in that went beyond that scope of her original order ( Paul when you get back from Fantasy Island stop in and tells us how your vacation was )

    Nicoletti’s additional addendum of no more downloading of Malibu’s works or a 15 k penalty would apply is beyond preposterous it’s outrageous and just smacks of desperation to achieve some kind of a victory to show to our little German friends.

    Colorado’s court system seems to come out more and more looking like they ought to have a large selection of red clown nose’s and big floppy shoes to go with the attire. Now wonder the trolls love to file their, they are almost encouraged to do it as they will find a very troll friendly jurisdiction to file in ( Honestly reminds me of Eastern District of Texas with it patent troll friendly courts )

    I guess when you are just wow-ed by the trolls initial filings , there can be no question of innocence, more of a travesy in justice if you ask me. We will have to see what Malibu does to get themselves out of this.

    Anyway you slice it , Malibu is going to come away from this case with some bumps and bruises. If the Judge lets them off scot free, it will be a real shame as they plucked this defendant out of their awesome investigation methods and had evidence to prove this defendants infringement of Malibu’s shitty -er- I mean copyrighted works. I would seriously hope the Judge takes them to task for their investigation and methodology used to file what is looking more and more like a non infringing defendant.

    I guess that dash for the cash in this case is far from achievable, but damn if the trolls were going to miss an opportunity to try for some easy cash. By my count this is the 2 defendant where no infringing Malibu files were found or a IP address/ISP subscriber shouldn’t have been named in my opinion

    • DieTrollDie says:

      BTW – I did send Mr. Paige an email inviting him to comment on this article. So far no comment.

      DTD 🙂

      • Anon E. Mous says:

        I would say I am shocked but, I’m not. I doubt our German friends would be very happy if Paige commented. The troll machine has been in damage control mode since Lamberson and from the looks of thing’s this wont change anytime soon

        How long the trolls can stay radio silent will be seen, I cant see the courts or even a bar complaint not arising out of this new tactic which seems more or less dedicated to keep the gaffe’s from Lamberson that Vandermay made from repeating themselves.

        I am still waiting for the ruling on Lamberson and I am sure the trolls are dreading how it will effect their game

  2. Sir Roberts says:

    Perhaps their little investigative black box doesn’t work so well. It sure seems to spit out some false positives. Not surprising at all. Mr. Paige sure is comes up with a bunch of excuses when he can’t find any evidence. Pure speculation is very damaging to the reputation of this supposed expert.

  3. Jessie Doe says:

    I am concerned that Mr. Paige tasked with determining if there were any evidence of defendant pirated Malibu Media/X-Art porn vignettes (short video clips, not movies), took the liberttty to sift through and reveal information having nothing to do with the case. Even a five year old could understand that he violated the subpoena.

    Let’s hope there are some heavy sanctions for this conduct. For way to long Malibu Media and it’s attorneys having been flipping the bird to and making a clown show of the Federal Court.

  4. David says:

    It’s not blackmail. Blackmail is threatening with illegal consequences. This here is extortion: threatening with legal consequences (it is basically always legal to sue anybody over anything even if you don’t have a leg to stand on) that are wildly inappropriate.

  5. Quiet Lurcker says:

    Mr. Paige states in his deposition (declaration? affidavit?) that he ‘supervised’ the people doing the detective work, not that he did the work.

    He also states that he was decorated as outstanding officer of the month or year a number of times.

    Neither of those facts demonstrates even indirectly that he is capable of performing computer forensics.

    He goes on to state that he’s had X number of hours of training, but never states the program, or where he got that training.

    HIs ‘testing’ of the trolls’ software – at least as reported – is laughable. I’ve had training and direct experience with the protocol he’s attempting to describe, and I can tell you it fails miserably.

    Short version: That statement – affidavit, or declaration, whatever you care to call it – is so much waste paper.

    As for the trolls – well, civil contempt of court would be a weak starting point. What’s needed in this instance is criminal contempt, sanctions, and for the court to instruct the troll’s laywer to give up his license the state bar to pull it if he refuses.

    • DieTrollDie says:

      If you check his CV, you will find all his training and certifications for his field of computer forensics – it is significant and would be a hard area to discredit. Here is a copy.

      The testing of IPP software was testified to at the PA Bellwether Trial in PA, 2013. *** I will repost the transcripts and audio files so everyone can read and listen. ***

      The area that Mr. Paige is going to have trouble with is his reputation. In his declaration he states that his reputation is one of his most important assets in his current position at Computer Forensics LLC. Paige Rep

      His reputation (as well as his credibility and trustworthiness) is put into serious question based on the Sun Sentinel article of him allegedly purchasing controlled substances (Schedule 3 (III) Drug) via the Internet.

      Now some may say that it was only “Drugs,” so it doesn’t affect his ability to do his job. I beg to differ.

      If he has a drug addiction problem, his judgment may be ‘off.’ In my opinion, his judgment was SERIOUSLY off when he allegedly used Palm Beach County Sheriff’s Investigative resources to have 70 Hydrocodone (Vicodin) pills shipped to an undercover registered UPS mail box, using his online alias. This is the alias he used while conducting online undercover investigations. He wasn’t even smart enough to set up a new alias and a new mail drop.

      So based on this, I seriously doubt Mr. Paige will be doing any testifying for Malibu Media – if they can help it. That is unless Troll/Plaintiff can secure another monkey-show of a trial like the one in PA. The problem with PA Bellwether trial is that due to ‘agreements’ made between Troll/Plaintiff and the Defendants, there was NOT going to be any questioning of ANY aspect of the Troll’s operations by the Defense. This agreement likely reduced the ‘agreed’ upon amount each Defendant would have to pay Troll/Plaintiff. The Defendants got what they wanted (reduced damages) and Troll/Plaintiff got what they wanted – NO QUESTIONS ASKED.

      I have to seriously wonder why Troll Lipscomb/APMC/Malibu Media LLC, is still using Mr. Paige. But then again, APMC is still using the Crystal Bay Corporation (CBC) and Daniel Macek. Is it because he is the only one willing to work for them in this questionably run business model of generating settlements??? Or is it something like Mr. Paige needed the work and reduced his rate to secure a contract with Troll/APMC???

      If any cases Mr. Paige worked goes to full trial, I would expect a serious grilling of him on the stand. Mr. Paige may be experienced on the stand and not falter, but the details of his alleged illegal drug purchase are not going to go away.

      DTD 🙂

  6. David says:

    It just occured to me. If a party asks for an extension of a deadline by one day because of selif-incurred “clerical error”, and the judge grants an extension of one day exactly: that looks pretty much to me like a pissed-off judge saying “call”. Judging from the docket, the next thing said would likely have been “thought so”. But then it might just be weekend.

    • DieTrollDie says:

      It is sad that many US courts allow people to string things along with worthless excuses over and over with little action ever taken. The worst Troll/Plaintiff expects is that it will get a minor ass chewing. I could be wrong, but for the most part the Trolls are in friendly environment.

      DTD 🙂

      • Anon E. Mous says:

        I agree. We all know there are some very troll friendly states where the Judges seem to give the trolls free reign to file as many cases as they want, taking as long as they want, with little to no opposition from the court nor any questions being raised about the validity of these claims.

        This is the legal version of extortion and in my opinion if this was a criminal case, it would barely pass the test to get into a court or would be circumstantial at best. The problem is that so many courts are so overwhelmed that Judges have a tendency to rubber stamp things along with little more than a cursory glance.

        If Judges actually looked at these cases and the so called evidence in them I believe they would see the amount of hooey in them. The other issue I see is that the trolls love, love to fill these with technical babble that drones on for 27 pages which in turn is designed to make it seems like there was this great big effort to track and investigate infringement

        In my opinion this is nothing more than smoke and mirrors. a one section connection only means they have a tiny fraction that is useless to have a workable copy of a movie, yet they deem this evidence.

        We all know this is not about copyright enforcement or protection of a persons work, this is mass litigation on the cheap to pressure for settlements from as many as possible and then cut and run.

        I don’t believe any of the trolls are any better than Steele, Duffy and Hansmeier. They are just as bad, in they are pulling the same scheme with just different methodologies at play.

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