Beethoven Is The Devil (AKA: Desperation of Malibu Media LLC/Troll Keith Lipscomb), 14-cv-61957 (SDFL)

I first wanted to say thank you to Sophisticated Jane Doe for the recent article on Malibu Media/X-Art/ Troll Lipscomb – Defendant’s expert witness report suggests that Malibu Media’s investigators doctored evidence. My life is still a bit chaotic, so the writing is limited. Case 14-cv-61957 (SDFL), Malibu Media LLC v. Robert Dare.  Attorney Cynthia Conlin did a great job in writing the Motion for Summary Judgment. It was clear, well-written, and show the world what a scum-bag operation he is running. Well done Mrs. Conlin. I bet Lipscomb will reply with some sort of “turd” which will only show how low he really is. Here is the Motion and Defense Expert Report.   Mot_SumJudge_Doc73_61957(FL)   Expert_Report_Doc73-7_61957(FL)

This case is “Worst Case” scenario for Troll Lipcomb and the Germans Masters. This case is the reason BitTorrent (BT) Copyright Troll Lipscomb will fight so hard to try to get a walk-away deal from a Defendant.  Even if this does go to a civil trial (I doubt it), Troll/Plaintiff is in NO way at a preponderance of evidence level (more than a 50% likelihood that Defendant was the infringer). Yes, it is only my non-lawyer opinion, BUT I really don’t think it will take a professional jurist to come to that conclusion. Why??? Let’s look at the evidence.

  1. Public IP Address Shared A Small Portion of Plaintiff’s Movie: Troll/Plaintiff logs showing a very small portion (67 KB) of ONE of Plaintiff’s movies uploaded to Plaintiff’s monitoring company by a public IP assigned to the defendant by the ISP (Defendant is the bill payer). Note: the other 16 movies Troll/Plaintiff claimed CANNOT be associated back to the Defendant because Troll Lipscomb and crew screwed up and only asked for one date/time group associated to ONE movie.
  2. IP Address Is Associated To Defendant’s WiFi Firewall/Router: The public IP address recorded by Troll/Plaintiff only comes back to Defendant’s WiFi Firewall/Router and NOT the specific computers connected to the WiFi.
  3. Open WiFi: The Defendant’s WiFi Firewall/Router had “Guest” access portal that was run OPEN – No password required. This was left open during the alleged period of infringement.
  4. Multiple WiFi Signal In The Area Of Defendant’s Residence: The Defendant’s residence shared common walls with two other residents, as well as had multiple WiFi signals in the area (at least 12 distinct signals). These “other” systems were NOT owned/controlled by Defendant, but could access his OPEN WiFi network.
  5. Denies The Infringement: Defendant and his wife were deposed by Troll/Plaintiff and DENIED being the infringers of Plaintiff’s works.
  6. No Evidence From Neighbors: Troll/Plaintiff only interviewed ONE neighbor (not even the next door neighbors) and failed to obtain any evidence. Note: Troll/Plaintiff likely didn’t interview the next door neighbors for FEAR if they could not obtain conflicting statements/new evidence supporting Plaintiff’s claim, the statements would have hurt their case. i.e. Neighbor: Yes, I did see that Defendant had an OPEN WiFi network during the period of alleged infringement.
  7. No Forensic Evidence: Examination of Defendant computer failed to disclose any evidence of BitTorrent (BT) activity OR that evidence on the computer was destroyed or removed. The best Troll/Plaintiff can do is say the BT client was used on a Macintosh and Defendant’s computer is a Macintosh. Macs are not as common as PCs, but they are FAR from a rarity and not indicative of who the infringer was.

This speculation is almost like if a Plaintiff found an empty discarded Monster Energy drink can at the scene of a car accident and, without analyzing tire tracks or other forensics, concluded that a random individual who likes Monster Energy must have caused the accident. Such is the logical fallacy of jumping to conclusions. Moreover, Plaintiff speaks of BitTorrent as if it were rare; however, BitTorrent “is one of the most popular ways internet subscribers transfer data from one device (a peer) to another (peer).”   (Motion For Summary Judgement, page 8)

  1. Defendant’s Computer Expert Found Troll/Plaintiff’s Monitoring Evidence Lacking At Best: The PCAP data Troll/Plaintiff claims indicates the defendant’s IP address was responsible for the infringement appears to be “filtered” and may indicate certain aspects of the BT monitoring is being hidden by Troll/Plaintiff. The integrity of the PCAP files is in question. Troll/Plaintiff’s Forensic examiner reports (Patrick Paige) were also found to be “incomplete” – differences in Paige’s report and the associated PCAP files. The log files provided by Michael Patzer were also found to be incomplete and misleading. The log makes it appear that Plaintiff’s entire movie was downloaded, when in fact each PCAP file only cover 67 KB of the movie (Very Small Portion).
  2. Old Computer Not Examined: Troll/Plaintiff asked for computers used during the period of alleged infringement. This old computer was only used prior to Plaintiff’s claimed period of infringement. Note: this is where the Troll is likely to complain that Defendant hid his infringement activity. Plaintiff’s motion to compel production of it was DENIED – AKA: NO EVIDENCE.
  3. The “Other” Evidence (Non-Plaintiff Movies) Does NOT Tie Back To Defendant: These are the “Other” files that were being shared by the BT client using the public IP address assigned to Defendant. For most people who use BT, the “Other” files is simply the list of movies, music, eBooks, applications, etc., which have been downloaded to the BT client and are available to be shared out. The Trolls collect this information on these files from the BT client and use it to profile who the infringer likely is. It can give some indications of what interests the BT user, but it is far from a smoking gun as far as “evidence.” After looking at Defendant’s (and wife’s) social media profile, private records checks, and deposition responses, the best Troll/Plaintiff was able to do is point to a single YouTube video. In the “Other” evidence, there is a copy of Beethoven’s 5th Symphony. Plaintiff claims that because Defendant (unverified YouTube account) “liked” a video of Beethoven’s Moonlight Sonata on YouTube, that the copy of Beethoven’s 5th means Defendant is the infringer. I just looked at one YouTube video for Moonlight Sonota and it had over 200K likes.

LudvigNow I know that some attorneys out there will say they are only doing what the client wants. Well, what this Troll/Plaintiff wants is to send a clear message to ANY Does and Defense attorneys that it is cheaper to pay a settlement than actually fight, EVEN if innocent. The reason Troll Lipscomb and crew are fighting this is NOT because they truly feel this Defendant is lying, it is because if he obtains a summary judgment and is awarded reasonable attorney costs/fees, it could open the door for other Defendants to do the same.

Troll Lipscomb and the other Trolls out there know it does not take a “rocket scientist” to make it hard for them to win a case. Lipscomb even stated in the June 2013 PA Bellwether Trial that at first he thought proving these cases would be hard because a Doe would simply get rid of the offending computer and he would have no evidence.The following is the closing statement of Keith Lipscomb in that joke of a show-trial.

It is actually requires a bit more effort but, this is just one aspect of “This” case. When you look at ALL the evidence (or lack of), it is clear that a “preponderance of evidence” does not support Troll/Plaintiff. The best Troll/Plaintiff can do is try to limit the award of costs/fees, by claiming the Defense misconduct by unnecessarily running up costs. If Lipscomb is not testing the waters to see if the Defendant will accept a settlement from Plaintiff to make this go-away, I would be surprised. I hope this Defendant does stay the course and the court is able to rule on the motion. Even if denied, a trial is not an option Lipscomb wants. Such a loss could destroy what little help the PA Bellwether trial provides them.

I will leave you with the “Conclusion” from Attorney Cynthia Conlin – it sums it up beautifully.

First, Plaintiff cannot prove that Defendant was the subscriber of IP address 98.249.146.169 for all the dates and times that Plaintiff alleged its videos were downloaded. It only obtained evidence that Defendant subscribed to IP address 98.249.146.169 on the precise date and time of 06/08/2014 at 00:13:41 UTC, which was the alleged hit date for only one of Plaintiff’s videos. Secondly, Plaintiff failed to obtain any evidence that Defendant downloaded its videos. It has no admission from Defendant, no eyewitness, and no forensic or computer evidence linking Defendant to the downloads. Furthermore, Plaintiff’s own evidence does not connect Defendant specifically to the downloads; rather, it only links IP address 98.249.146.169, not any particular computer or individual, to the alleged downloads. Because Defendant was running an open guest network that neighbors could access by without a password during the alleged download period, evidence linking Defendant, and not just an IP address, is essential. Plaintiff’s much touted “additional evidence” is not evidence of the downloading of Plaintiff’s videos because it is a list of entirely different files allegedly downloaded at different times, and there is nothing linking such evidence to Defendant. Lastly, at best, Plaintiff’s evidence indicates the copying of not an entire movie but rather a single, unusable fragment. As the evidence produced by Plaintiff and recovered by Plaintiff during discovery is not sufficient to support a claim of copyright infringement, summary judgment should be had in favor of Defendant.

DieTrollDie 🙂

I woke up. The pain and sickness all over me like an animal. Then I realized what it was. The music coming up from the floor was our old friend, Ludwig Van, and the dreaded Ninth Symphony.” {Alex, A Clockwork Orange}ViddyWellLipscomb

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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4 Responses to Beethoven Is The Devil (AKA: Desperation of Malibu Media LLC/Troll Keith Lipscomb), 14-cv-61957 (SDFL)

  1. WDS says:

    If I read the motion right, the defendant claims other than a work computer that he returned to the company he used to work for, that the only devices used were iPhones, iPads. If it was mentioned that the old computer in the closet was a Mac I missed it.

    • DieTrollDie says:

      I didn’t see what make the old computer is.
      Also, the Troll just filed his own motion for summary judgment with lots of attachments. Haven’t pull any of the files. More desperation IMO.

      DTD 🙂

  2. jack jones says:

    In his assessment, the defendant’s IT expert raises the possibility of “whether (…) the Plaintiff’s investigator had “seeded” the (X-Art) file.” Could it be that other porn files are also being seeded to embarass the troll victims??? I always wondered how someone can know the files someone else is downloading from a Third Party???

    • DieTrollDie says:

      The possibility of seeding by someone wishing to sue a BT user is a possibility. BUT playing devils advocate, I really doubt the majority of the BT porn out there is the result of seeding by people planning to sue. The vast majority of movies out there are never part of any law suits.

      If you are speaking of the “Other” BT files Malibu Media/X-Art says indicates a BT user was a “Prolific Infringer,” that is easy to explain. That is simply a record they make when they identify a BT user with a Malibu Media/X-Art movie(s). As many people who use BT simply leave the files they download available (and viewable by anyone with a BT client). There is definitely some embarrassment factor to publicly disclosing this information, but I think what the Trolls really like doing is to use the “Other” files to try and profile the ISP subscriber and family members. They look to these files to build a profile of what the infringer likes, hobbies, and possibly their profession. Not that it really matters to the Trolls if it fits anyone, it is just a tool to try and scare a Defendant into settling or worst case (for the Trolls) accepting a walk-away deal.

      DTD 🙂

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