Malibu Media LLC (X-Art) “Pretext To Coerce A Settlement” – 1:14-cv-00493 (OH)

First let me say that due to some personal matters, I had to take a break on my more regular writing schedule. Now I’m trying to get back into the “swing” of things at DTD. I’m still reachable via the Web site comments and by email (dietrolldie@dietrolldie.com), so please don’t hesitate. 😉  BTW – check out the recent Techdirt article, “Malibu Media Seeks Order Forbidding Defendants From Discussing ‘Copyleft’ Blog Content.”  Looks like somebody doesn’t like what Sophisticated Jane Doe and I have to say.  Fools!

The following Malibu Media/X-Art/Troll Lipscomb case is typical of the garbage they file in various Troll friendly jurisdictions. Malibu Media, LLC v. DOE, 1:14-cv-00493, OHSD.  Archive Docket   The Troll attorney is Yousef M Faroniya and the Doe is represented by Joseph Abraham Bahgat and Jason Sweet. The case ran for a year until it was voluntarily dismissed by the Troll on 12 Jun 15. Attorney Jason Sweet then filed a Motion for Sanctions.

When I first read the complaint I laughed at the title, “COMPLAINT-ACTION FOR DAMAGES FOR PROPERTY RIGHTS INFRINGEMENT.” Property Rights Infringement??? Not sure if this is an acceptable term for this case type OR just another screw up for Troll Faroniya and Lipscomb. Maybe they simply forgot to add the word “Intellectual” in front of “Property.”   Complaint_00493(OH)    Complaint_MovieList_00493(OH)

There are a good number of case documents in the archive docket, so I will not go over the case in its entirety. Suffice it to say that the Troll filed the case against a single IP address that they claimed infringed upon 30 Malibu Media LLC/X-Art movies. The Doe hired an attorney and asked the Troll what it would cost to settle. The Troll wanted $22,500 ($750 per movie – standard Malibu Media starting point). The Doe countered with $495.95 (cost of filing the case), as well as for paying for a one month subscription to X-Art. This offer was rejected.

Of particular interest is Exhibit A to the Doe’s Motion to Quash.   MTQ_Doc_8_00493(OH)   MTQ_Doc_8-1_Emails_00493(OH)   Please read the email chain for an amusing exchange between the attorneys. Troll Faroniya did eventually received the Doe’s personal information from the ISP, but repeatedly failed to serve him with a summons/complaint (Two requests for additional time). The Troll even violated the court’s order when it filed the Doe’s true name/address on a proposed summons. This alleged “mistake” was quickly corrected and Doe’s attorney filed a Waiver of Service for the summons/complaint on 28 May 15. Two weeks later (12 Jun 15), Troll/Plaintiff voluntarily dismissed the Doe without prejudice. On 20 Jun 15, Jason Sweet filed a Motion for Sanctions Pursuant to 28 U.S.C. § 1927 and/or the Courts’ Inherent Authority.    MFS_Doc_38_00493(OH)

Plaintiff Malibu Media’s voluntary dismissal abandoned its claims against the John Doe Defendant, confirming Defendant’s contention that the entire action had been little but pretext to coerce a settlement. Defendant respectfully and timely submits this motion, pursuant to 28 U.S.C. § 1927 and the Court’s inherent authority, for an order requiring counsel for Plaintiff Malibu Media, specifically Yousef Faroniya, to satisfy personally the excess attorney’s fees Defendant reasonably incurred because of his unreasonable and vexatious multiplication of the proceedings in this case.

Troll Faroniya characterized Doe as among the “worst of the worst infringers” of Malibu Media’s copyrights and claimed their “investigation” would show that the Doe/ISP Subscriber was the offending party. Note: See the email chain (above) for some “baffling” comments by Troll Faroniya concerning Doe culpability.

  • Troll Faroniya goes from stating the ISP subscriber IS the offender; the ISP subscriber is MOST LIKELY the offender; and that it is possible the ISP subscriber is NOT the offender.

Yet, two weeks after serving the Defendant—one of the worst infringers of Malibu Media’s content, whom Mr. Faroniya has confirmed is undeniably guilty, and in a matter wherein a year’s worth of time and fees pursuing the litigation has accrued—Mr. Faroniya voluntarily dismissed the claims without explanation.

Mr. Faroniya’s voluntary dismissal unequivocally established the untruth of Malibu Media’s allegations against the Defendant. More so, it further reinforced the consensus held by numerous courts that Malibu Media never had a genuine interest in proceeding against the Defendant. Instead this action was a deliberate attempt to coerce a settlement from the Defendant by causing him to expend time and money on a meaningless goose-chase of a case. See e.g. Malibu Media, LLC v. Does, 923 F.Supp.2d 1339, 1345-46 (M.D. Fla. 2013). Where “the attorney’s behavior has been repeated or singularly egregious,” for example where the attorney “‘repeatedly took actions which required [the defendant] to expend unnecessary time and money, even though he had no intention of pursuing this litigation.’” § 1927 sanctions are appropriate. United States v. Wallace, 964 F.2d 1214, 1220-21 (D.C. Cir. 1992); Oakstone Cmty. Sch. v. Williams, No. 14-3742, 2015 U.S. App. LEXIS 10143, *9-11 (6th Cir. 2015); In re TCI, Ltd., 769 F.2d 441, 446 (7th Cir. 1985) (“Suits are easy to file and hard to defend. Litigation gives lawyers opportunities to impose on their adversaries costs much greater than they impose on their own clients. The greater the disparity, the more litigation becomes a predatory instrument rather than a method of resolving honest disputes.”).

As Troll/Plaintiff never produced any evidence of who the infringer was, it is unknown what actions they took in trying to determine this. It is my belief (and others) that the Anti-Piracy Management Company (APMC) and Troll Lipscomb simply looked at the “Other” files (AKA: Exhibit C) being shared via BT over Doe’s IP address and try to draw some conclusions from it.

APMC_System2

Prior to the release of Doe’s personal information, Troll Faroniya claimed the “likely” infringer in this case was a male under the age of 35, who engages in amateur (at a higher end level) photography, and probably works or is studying to work in the health care sector. Jason Sweet informed Troll Faroniya that their “profile” did not fit the ISP subscriber or others in the residence. This of course did not persuade the Troll to try to identify the real infringer.

Attorney Sweet’s motion for sanctions is a good primer for those people who do not understand the tactics employed by Malibu Media/X-Art/Troll Lipscomb to force settlements. The strategy of Troll Lipscomb and crew is to cause the Doe/ISP subscriber to expend more money in fighting than by simply paying a settlement and making the law suit go away. Even when the Trolls come up against a Defendant who has the will and means to fight back, they generally don’t back down until the last possible moment. The time and money the Troll loses by dismissing a case like this is seen as an “investment,” as it sends a message to Doe Defendants/Attorneys – It will cost you more to fight and if we dismiss the case, you may not have your attorney fees covered. These last-minute dismissals have NOTHING to do with the Troll finally determining the ISP wasn’t the offender. These are just the abusive tactics of well-funded copyright monetization organization supported by attorneys with questionable ethics (MY Opinion).

A court must temper a plaintiff’s right of voluntary dismissal with consequences when it used not in good faith, but rather as a tactical tool to frustrate due process and in such a way that prejudices a defendant’s rights. See e.g. Collins v. Warden, London Corr. Inst., No. 12-cv-1093, 2014 U.S. Dist. Lexis 72643 (S.D. Ohio May 28, 2014). The fact that Mr. Faroniya can unilaterally terminate the action under Rule 41(a)(1) does not mean that he cannot be held accountable for what occurs in that action. River City Capital, 491 F.3d at 310; Cooter & Gell, 496 U.S. at 397-98. As the Supreme Court has recognized, the purpose of the Rule 41 provisions regarding voluntary dismissal without prejudice is to “curb abuses of the judicial system,” and the policies behind Rule 41 are “completely compatible” with the policies of other Federal Rules whose violation may bring sanctions, like § 1927. Id. at 397.

Hopefully this court will see the Trolls for what they really are and at least award attorney fees/costs. My hopes are not high, but stranger things have happen before. I will close this out with a screen shot from the APMC Prezi Presentation. I don’t think the choice of wording was a simple mistake – Freudian slip??? 😉

APMC_Persecute1

DieTrollDie 🙂  

Certainly the game is rigged. Don’t let that stop you; if you don’t bet, you can’t win.” {Robert A. Heinlein, The Notebooks of Lazarus Long}

 

 

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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9 Responses to Malibu Media LLC (X-Art) “Pretext To Coerce A Settlement” – 1:14-cv-00493 (OH)

  1. Doe says:

    Hi DTD,
    I am actually in the middle of reading your posts and listening to that Bellwhether Trial audio to help my case. I skipped the first court hearing and now they want me back for another one at a later date. I was already positive that I, nor anyone else, downloaded anything that was remotely linked to Malibu Media LLC. However, after searching the web for answers I have been able to build a case with myself as my own lawyer. I admittidly went to X-art.com just one day prior to my supposed “download/hit date). It only makes perfect sense that Malibu Media retrieved my IP address by visiting their website and not by “Bittorrenting.” Well, I know they had to of because I never downloaded porn. The reason I am writing you is because I wanted to find out from a former defendant if it would be worth it to go in and pled my case while exposing their vicious ways or just continue to ignore their letters until they decide to write my case off? Like yourself, I want to put a stop to this. However, I can not afford an attorney or any fees to be honest. Thanks for reading and hope to hear from you soon!

    • JRoberts says:

      A fair amount of specifics are needed to advise you. One needs to be a lawyer to offer legal advise. Your case as all cases are very dependent on who the judge is. Some judges assume you are guilty and won’t give you much of a chance to prove otherwise.

      You must preserve your storage media, hard drives, usb flash drives, etc. If you attempt to erase drives, reinstall windows, etc they will likely discover this and ask for default judgement in that you spoiled the data and the judge could wack you treble damages. Some very good attorneys have tried to show the plaintiff’s business model of using courts as quick settlement farming and never going to trial. Must judges don’t seem to care. Judges also seem to have no idea of the technology and how little the plaintiff has in the way of real evidence. .

      You may eventually need to hire an expert to testify about your hard drives and their proving you are innocent. The legal system is more about beating each other up until one side decides it isn’t worth the effort. So you want to throw as many hurdles to rack up their cost and time. Experts and forensic is expensive but if you win, the plaintiff will hopefully be required to pay the costs. They would also pay legal fees but if you are doing your own work and research, it is unlikely you will be compensated for what will be many weeks and possibly months of work. Plus if you are not a lawyer, you will spends a great deal of time simply trying to understand law and the legal process. On the other hand a lawyer that handles these cases probably has most of the work completed and motions prepared.

      The Bellwether trial was a farce and an example of how administration of justice was not on the table. Judge Baylson was more interested in whether Colette performed in the videos than whether she was perjuring herself and that the experts were not qualifed to be experts. This should give you some food for thought as to what a circus the justice system is.

      I like to think my motion to sever joined Does precipitated the Bellwether trial. Although most of my argument was rejected, I presented how many judges where working on the cases and how much the court was being ripped off by bundling the Does together. At that time, the plaintiff was paying less than $10K for what should cost several hundred in filing fees. In other words the Federal Court was losing money and judges like to get paid big bucks. And the public was subsidizing the pornographer. A week after I filed my motion they put all cases on hold and created the Bellwether trial. The Bellwether trial established that joiner would not be allowed in at least the Eastern Federal Court. Plaintiff promised to only pursue defendant that were the worst of the worst. All case that were on hold were dismissed by Plaintiff.

  2. WAFTC says:

    I am curious as I have seen the mention of spoilation of evidence before how that would apply to an act before even being served. The first step in the trolls take is to request the identity of the IP from the ISP and in some cases wait months before initiating formal legal proceedings. What do you think would happen if someone bought a new computer in that window? Once served I totally get the concept of spoilation of evidence but if someone is notified by their ISP someone is asking who they are does that person really have a legal responsibility to not go about their life and instead just wait to be served? I have read that if it is a reasonably foreseeable litigation spoilation might apply but some trolls will do anything to avoid formal proceedings. I guess the question is can someone really be guilty of spoilation of evidence if they are not technically even involved in a lawsuit. I don’t know about other people my buy mother seems to ruin a laptop somehow about once every 12 to 18 months and it is just cheaper to replace it than it is to fix!

    • DieTrollDie says:

      It can depend on the judge, but generally if you have received a letter from your ISP that a real lawsuit and subpoena has been issued, doing such a thing can get you into trouble. If it happened before notification, I doubt you would face any sanctions.

      DTD 🙂

  3. JRoberts says:

    I think most judges would take attempt to clean drive once notice of ISP is rec’d as evidence of guilt. However we all know hard drives fail and laptops and devices get stolen. If one claims it was stolen you better have police report. Perhaps one could use a strong magnet and drop the drive a number of times to make it it inoperable. Don’t know how exactly how to do this but the the point is to make the drive unreadable without showing signs that you damaged it such as taking a hammer or drill to it. I doubt the Plaintiff would go to expense of attempting to repair drive but just in case they do, you want the data on disk platters damaged. Of course if you are innocent, you would just want to preserve and protect the drive. I would do a drive image and them store both in very safe place and get a new drive to use in the meantime.

    My case only went to initial motions, was placed on hold for half a year and dismissed by Plaintiff. This is old as Plaintiff has changed methods and now very rarely dismiss without settlement. My records showed that I was out of state caring for mother in hospital as the supposed time of downloading.

    I wonder why there is not more public coverage of these cases. One would think the ISP and WiFi manufacturers should be potentially liable. The ISP should be advising customer that their data can be subpoenaed and will be turned over. The WiFi manufacturer’s did not furnish equipment that was secure. They falsely advertised and claimed they were secure from hacking. But many of the popular and early generation WiFi router can be hacked in about 3 minutes.

    I wonder how many parents would have high speed broad band when it is so easy for their children to run afoul of the law with potentially very serious financial ramifications.

    I was very depressed when I was falsely accused. I was molested as a child. I hate pornography, presenting people as nothing more than meat. I have never even purchased a Playboy magazine which I guess is pretty tame in today’s world. My sister had just died and my mother just diagnosed with advanced cancer. So it was not a good time for me. I had very important things to do instead of wasting time protecting myself from predatory pornographers and their scumbag attorney who will never go to trial because he can’t prove his case on the merits.

  4. DoE says:

    Thank you all for your comments. I have taken some great thought into your suggestions. I did download, Just not the content of which I am being sued over. Because of this reason I am scared to turn over my hard drive. If I knew I wouldn’t get in any trouble for the movies and music I have downloaded then I would have absolutely no problem with them going through my hard drive. You’d think that alone should be enough to throw the case out. I can see exactly what I downloaded on the date Malibu Media provided and it was not porn. Considering they know I never downloaded their content it begs the question: will they throw my case out if I just keep ignoring the letters?

    • JRoberts says:

      They can only sue you for movies they have copyright patent on. They do not have standing to sue you for other owner’s material. If a complaint has been filed in court, you have to defend yourself otherwise ignoring it will lead to default judgement which can be around $2,000 per movie. If they get default judgment, they can seize your assets and garnish wages.

      If they are sending you a letter for settlement or information and have not filed a complaint in court, you might answer it saying I did not download any of your movies. They will try to use anything information you give them against you.so I would not furnish any info besides; I did not download the movies you accuse me of stealing..

      They will search your hard drive and devices for their movie titles. It seems to me that if you are only arguing that I didn’t download your movies when you say I did, you end up admitting you infringed their copy right.

      Realize that deleting a file does not remove traces from the drive that the file existed before. The hard drive also stores info about when you attach an external drive or USB to it. If they find that you attempted to destroy evidence, they will ask for summary judgment. If you perjured yourself in a deposition or interrogatory, the judge could treble the awarded amount.

      The legal process is more about bloodying each other until one party cries uncle or runs out of money. The plaintiff does not care if you are innocent, they want your money.

  5. melk says:

    I believe there may have been an error in transcription:

    > River City Capital, 491 F.3d at 310

    Justica.com shows 310 being >>Hamilton County Board of Commissioners, Plaintiff-appellant, v. National Football League, et al., Defendants-appellees, 491 F.3d 310 (6th Cir. 2007)<> River City Capital, L.p., Plaintiff-appellant, v. Board of County Commissioners, Clermont County, Ohio, et al., Defendants-appellees Date: June 6, 2007 Citation: 491 F.3d 301 <<

    See: http://law.justia.com/cases/federal/appellate-courts/F3/491/

    Whose error this might be, I venture no guess.

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