Malibu Media (X-Art) Isn’t That Bad (AKA: First Rodeo) – 2:13-cv-12217 (MI)

Yes I’m joking.  Sometimes people say that since a majority of the Does in BitTorrent (BT) Copyright Infringement cases are the true offenders (or their family members are), the Plaintiff’s in these cases are doing nothing wrong.  They say they are simply trying to stem the tide of piracy and recoup some money.  “Why do you call them Copyright Trolls?”  “They do not deserve that term.” “They work hard to make a real product and BT piracy hurts them.”  Beyond that is goes down the road of “You’re just thieving pirates,” or “You’re part of an Internet Hate Group that scares lawyers and Plaintiff to consider getting a guard dog.”  I acknowledge that Copyright infringement is an issue and AS the law is written, Troll/Plaintiffs are within their right to file these cases.  What I detest is the sleazy business model that squeezes money from people under the guise of “Combating Piracy.”  It is my opinion that this business model (BT Copyright Infringement) is nothing more than legal extortion based on greed of the highest level.

I recently told one Malibu Media/X-Art supporter that Brigham and Colette Field are  equally responsible for what the Troll attorneys do in their name.  They might have gotten in bed with Keith Lipscomb (and the Anti-Piracy Management Company (APMC)) with the best of intentions, but that does not justify the abusive practices.  Troll lawyers have the common view that if you are the ISP subscriber, you are responsible.  This fact is highlighted in a recent case filing of a Brief In Support Of Defendant’s Response To Plaintiff’s Amended Motion To Dismiss.  The document is at the bottom of this article.  This is a must read document on how Malibu Media/X-Art/Troll Lipscomb run these cases.  Fightcopyrighttrolls.com has covered this case and exposed much of the sleazy Troll practices.

The case at hand is 2:13-cv-12217, Eastern District of Michigan, against a single Doe/IP address.  It was initially filed on 17 May 13, based on Troll/IPP observation that public IP address 68.62.41.133 had downloaded/shared 21 Malibu Media LLC works between 16 Aug 12 and 26 Mar 13.  On 14 Aug 13, Troll/Plaintiff amended its complaint to named Mr. Gerald Shekoski as the Defendant.  Immediately following being named/served, Defendant hired Derek S. Wilczynski and Lincoln G. Herweye, Blanco Wilczynski to represent him. These attorneys tried to convince Troll/Plaintiff that Defendant was not the offender and asked for him to be dismissed.  Malibu Media LLC decided it knew better and spent considerable effort on deposing Defendant, as well as examining his computer hard drive.  The judge in this case even made it VERY clear to Troll/Plaintiff that if the forensic analysis failed to disclose any direct evidence of Plaintiff’s movies OR evidence of data destruction (spoliation), Plaintiff would dismiss the Defendant.  Sounds straight forward and simple doesn’t it???

Troll/Plaintiff had the forensic analysis conducted by the now-infamous Patrick Paige.   Doc_22-1_12217(MI)   Funny, it appears something is missing from Mr. Paige’s work history at the Palm Beach Sheriff’s Office  The forensic report is light on details AND there was NO mention of Paige finding – 1) a BT program/client; 2) Torrent files; 3) Plaintiff’s movies; 4) Evidence of Data destruction.  Mr. Paige did report that there was evidence indicating the Defendant’s daughter had used Limewire (file sharing program) years ago to allegedly download/share copyright protected music.  Nothing stating that Defendant or his son took part in BT file sharing.

Based on Mr. Paige’ inability to clearly disclose his finding, the judge directed Troll/Plaintiff to have Mr. Paige amend his report to specifically address the key issues.   Doc_23_12217(MI)

2.  Patrick Paige must supplement his affidavit by September 23, 2014. The affidavit must answer the questions: (1) Did Mr. Paige find evidence of copyright infringement as alleged in the Complaint? (2) Did Mr. Paige find evidence of deletion of infringing files?

NMFRB1The Paige supplement was NEVER presented to the court.  Go Figure.  Based off of the weak forensic report, Troll/Plaintiff decided to try to scare defendant into accepting a “walk-away” deal.  Here is the email chain between Troll Nicoletti and Wilczynski & Herweye.  WOW!  Let’s not mince words here!  I don’t think the Troll was expecting this response from Wilczynski and Herweye.   Doc_30-14_12217(MI)

{To Nicoletti} I understood your offer when you related it to me earlier today, and I am ethically bound to take it to the client.  And I don’t think it was out of order for us to ask for the expert’s report in conjunction with the same. But if you’re going to shake your fist (or your client’s fist) in a threatening manner (so to speak) so that we will be sufficiently intimidated to take your offer, it behooves you actually make it scary . . . you know, so that we can be afraid. Otherwise, it’s just embarrassing. Derek and I both litigate against Fieger regularly and he’s been perfecting his circus act for long time– so, you’ve really got to bring your A-game (I’ll let you decide what the A stands for) if you want us to buy into your theory that “bad things” are going to happen unless Gerry agrees to walk away. In point of fact, while this is clearly not our first rodeo, it is a “first” of sorts. Which is to say, it may be the first time we have collaborated on a case whether the risk of an actual downside is so low.

So after approximately a year and a half, a Defendant answer, limited depositions and discovery, it comes down to Troll/Plaintiff asking the court to dismiss the case against the Defendant “Without Prejudice,” so it can avoid having to pay Defendant’s attorney fees and cost.   Doc_30_12217(MI)   I would estimate the low-end attorney fees/cost Troll/Plaintiff is facing is $30,000 (probably much more).  Troll/Plaintiff of course pleads that they did nothing wrong, Defendant (or his family members) were the infringers, and they are only dismissing it because it is no longer cost-effective or practical to continue.  Not cost-effective to Troll/Plaintiff as they cannot prove anything, only make allegations.

In response, Wilczynski & Herweye filed the following response document showing why the Dismissal should be “With Prejudice” (allowing for fees/costs to be claimed IAW 17 U.S.C. § 505) and why Troll/Plaintiff’s claims are absurd.  The response is a no-holds-bar slam against the Troll and Plaintiff.  As I said, this is a must read.   Doc_31_12217(MI)

Indeed, Plaintiff’s business model and professed strategy appears to be that an innocent defendant should still have to pay if he or she can be smeared with “guilt by association” regarding the alleged but unproven acts of others for whom the defendant has no legal responsibility. Further, apparently Defendant was supposed to have (in Plaintiff’s view) acted as Plaintiff’s unpaid and involuntary investigator, with his entitlement to escape liability not being dependent on whether he was the infringer or not, but on whether he discovered who actually did the infringing and “ratted” that person out (so to speak) to Malibu. While that type of coercion might not be uncommon inside of a prison (e.g., “if you don’t stab that guy, then we’ll stab you”), it is hardly the type of behavior that should be endorsed or rewarded by a federal court.

What I found very interesting was in their filing, Troll/Plaintiff claims the most likely offender was the Defendants son.  This was based on of the fact the “Other” files being shared via BT (AKA: Exhibit C – “expanded surveillance”) had a “Dr. Who” and “Wii” file AND the Facebook page for Defendant’s son indicated he “Liked” these topics.  REALLY, a Facebook “Like???, that is your evidence…”   Troll/Plaintiff then “Forgot” to mention the “Other” files that were being shared that did NOT point to Defendant, his son, or daughter.

Secondly, even if this Court were to buy into the explanation that Plaintiff has offered other courts as to why it creates and attaches a record of its “expanded surveillance,” using it for that purpose exculpates your instant Defendant. Specifically, and as evinced in Defendant’s responses to discovery, your instant Defendant is a 54-year-old father and grandfather, Catholic of Polish descent who enjoys golf and using his computer to play Texas Hold’em. Nowhere on Plaintiff’s Complaint Exhibit C is any video or movie suggesting this profile (e.g, there are no golf videos or instruction videos for on-line poker). By contrast, the works listed on Complaint Exhibit C seem to describe an individual who speaks Arabic (and probably French) in addition to English, and is either Islamic or has an interest in Islam. They also describe an individual with substantial computer sophistication who would use materials as Linux – Teach yourself KDE in 24 hours and !! Programming – Write Great Code, Volume 2 Thinking Low Level Writing High Level. In point of fact, the person described by Plaintiff’s Complaint Exhibit C is NOT Defendant nor anyone in his family.

Please read the document and see what Malibu Media LLC is all about.  Malibu Media supporters may say, well that is just their attorney and not truly them.  Bullshit!  They signed up with Troll Keith Lipscomb & company and the cases are filed under Malibu Media LLC.  ALL the actions taken are in their name, and the money they receive is a direct result of their decision (regardless of how little they claim to get from it).  You can’t take the settlement money and then say you don’t agree with the methods used to generate it.  As the saying goes, “You lie down with dogs, you get up with fleas.”  Associating with those of low reputation may not only lower your own but also lead you astray by the faulty assumptions, premises, and data of the unscrupulous.  At least John Steele was honest enough about what he was doing and accepted the title of “Master Troll.”

I hope the court makes a swift decision and awards the attorney fees/cost IAW 17 U.S.C. § 505, but I will not hold my breath.  We will see.  Thank you Mr. Shekoski, Mr. Wilczynski, and Mr. Herweye.  Well done gentlemen.

DieTrollDie 🙂   “The Defendants have libeled Plaintiff under the disguise of such childish and unsophisticated pseudonyms as ‘die troll die’.  {Prenda Law, Inc.}

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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10 Responses to Malibu Media (X-Art) Isn’t That Bad (AKA: First Rodeo) – 2:13-cv-12217 (MI)

  1. J Roberts says:

    I doubt X-Art could survive financially without all their lawsuits. Their stuff is very boring and there is the yuk factor of their porn models appearing to be underage. Seems geared for 9 to perhaps 11 year olds boys or perverts.

  2. WDS says:

    Wilczynski’s reply to Nicoletti was good, but Herweyer’s is just priceless. I like his stated business model.

  3. Fromer Jane Doe says:

    The plaintiff has no prove anyone did anything. They are loose with the accusations that it was the defendant, the defendant’s daughter, the defendant’s son. I trust the judge has had his or her fill of this nonsense. The Fields, the owners of Malibu Media / X-Art have been posting their smut all over the internet with effort to prevent underage children from viewing it. Perhaps it is only a matter of time, until a defendant counter sues for the delinquency of minors.

  4. F ALL YOU TROLLS says:

    What an excellent email reply and motion!! Could barely contain myself as I read the justifiable contempt W&H have for dumbass douchebag Nicoletti (and his rotting ass-pit puppetmaster Keith Lipscomb). We can only hope that the judge actually does his job right and dismisses with prejudice, and then properly awards fees to the defense.

    Maybe the defense could even go for the jugular, finding some legal reasoning for sanctions or escalated fees given the plaintiffs actions.

    Or the judge could just issue them on the courts authority alone, given the completely fucked-up and contemptible actions of the plaintiff after they knew the defendant was clean—–wouldn’t that be something.

    • DieTrollDie says:

      Malibu Media is in a tough spot now over this case. If the judge allows them to take back the motion to dismiss, they will have to move forward at least to a summary judgement. If it goes to a trial, their “experts,” methods, and behind the scene controllers are going to be,attacked. Patrick Paige and his “reputation” will be destroyed. The Germans will not show up and the judge is likely to get mad at the games. Paying the Defendant and getting a confidentiality agreement will be thier goal IMO. That is if they are not too stupid to think they are untouchable.

      DTD 🙂

  5. Anon E. Mous says:

    I would believe most people are of the opinion that troll lawsuits are nothing more than a revenue generation model and have little if nothing to do with copyright enforcement. IMHO thees cases from my view point are very threadbare on actual evidence, a one second snapshot is not evidence.

    The trolls are not interested if you have downloaded a copy of the full movie, or even a scene from it. No they want a connection even if very brief because they know full well they can use that brief connection to say you d/l their work. Whether you have a complete copy is irrelevant to them in my opinion.

    If you ever wonder why people who view bit torrent lawsuits as shady, you need to look no further than the main perpetrators of these lawsuits and that is our little German friends. Humiliated in Germany when the bit torrent boilerplate lawsuits factory came down with a huge thud, they had to expand to other countries in order to keep the easy cash coming in.

    The people whose copyrights are being used are no better, they KNOW exactly what is going on with these as do the law firms that represent the rightsholder., they all were pitched the same things, and all viewed this as an easy way to get revenue without having to put a lot of time and effort into it.

    These lawsuits are based on odds, odds that many of those that are sued or contacted by the trolls will succumb to the trolls pressure tactics and settle rather than fight. And the profits from these are worth the risk to the trolls. Look at the Washington cases with ELF-MAN LLC, even though the trolls were in peril on a case, they still pursued to get costs for the defaults in the other cases in that state with evidence used in the one case that was in peril. Now why would they take a risk even with peril hanging over another case with evidence used in these default ones? Simple the risk was worth the reward.

    The trolls love the easy cash and to them since these cases were decided by default they knew the Judge would be hard pressed to revert the default judgement, and that easy cash were they could ask for whatever number they wished with ceiling on the damages in the act. They threw out a large number and if they got it…score! And if it got reduced, then they still made out over their original filing cost. So it is a win win for them.

    Until the Judges wise up and not allow the trolls to use their courts to legally blackmail and extort settlements from poor ISP subscribers these troll lawsuits will continue to a financial windfall. Look at Malibu for instance. They have filed in or around 2000 porn troll lawsuits Let’s say they spend $500.00 filing each individual lawsuit, and they have filled 2000. off them ….So 2000 x 500 = 1,000000.00 So they spent a million bucks filing 2000 cases…ok now lets say they settle each case for 1000.00….So 1000 x 2000 = 2,000000.00 So they make a million bucks…with little to no effort…..and if people settle for more, the profit margin goes up.

    It’s no wonder why the trolls like these suits, it’s easy money. Steele, Duffy and Hansmeier are a prime example of how hard it is to walk away from such a profitable model with little risk and costs to them involved. I just find it astonishing that the courts allow this to proliferate thru their court houses knowing full well what these types of lawsuits are really about.

  6. Ana Moss Doe says:

    I’m sure Collette Fields does not share these settlements with her little family of teen want-to-be porn performers. The German Court got it right when the judge found the videos to be not copyright protected because they are potentially harmful to children. However in America we believe in nothing but the almighty dollar and therefore purveyors of porn can succeed at least in terms of accumulating money but leading a life of any merit and worth is not in their cards.

    The case is a perfect example of how little the plaintiff and how negligent they are in false accusations. The last thing the Plainiff wants is to go to trial and prove how weak their evidence is.

  7. aguy says:

    If you received one of these companies that advises you to delete any infringing material and eventually you were taken to court for it, would it count as spoliation of evidence if you wipe your hard drive just in case it contains infringing material? All this before a lawsuit ever comes about of course.

  8. Pingback: Malibu Media blackmail: deep in the Prenda territory | Fight Copyright Trolls

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