It is not a secret that Keith Lipscomb and his minions are governed by the principle “anything goes to wrestle ransom from each Bittorent defendant — whether he/she is guilty or not.” In the pursuit for someone else’s hard earned cash, Lipscomb & Co never stopped to think if what they were doing was morally acceptable: even when their frivolous, evidence-free lawsuits targeted the most vulnerable — elderly ill , and even an immigrant who doesn’t speak English and doesn’t own a computer

This time the German Mafia and its agents crossed yet another line in their quest towards the bottom of the ethical abyss.

Malibu Media v Curt Vandenheuvel (FLMD 13-cv-01579) is an eventful case. Initially the defendant represented himself, but later wisely lawyered up (Charles Douglas and Joshua Cossey of Douglas & Hedstrom, Jacksonville). Since Malibu Media / Guardaley lawsuits are pure bluff, which is based on recording less-than-a-second-long Bittorent transactions, the trolls rely on court-approved fishing expeditions — examining defendants’ hard drives in a hope to find traces of X-Art’s “barely legal” porn and/or some indicators of evidence spoliation.

There is a plethora of instances when no defendant’s wrongdoing was evinced. Nonetheless, Lipscomb’s enormous greed and hubris didn’t permit ending those cases gracefully. For example, in Malibu Media v. Jesse Raleigh (MIWD 13-cv-00360), Malibu lawyers resorted to cropping pictures and claiming that a standalone monitor could be used for torrenting.

The instant case is one of such cases: Malibu’s expert Patrick Paige didn’t find any of X-Art’s pornography. Nonetheless, the pressure continued.

A subpoena to Comcast revealed that the defendant’s ISP had sent 270 DMCA infringement notices to the defendant, so I understand why Lipscomb aggressively pursues this case. However, there are certain ethical limits that even a most aggressive attorney should mind.

The expertise discovered traces of Bittorent activity (music, TV shows) allegedly by defendant’s daughter. And the troll wanted to depose her.

The problem is that Amber (the daughter) is young, very young. She is 18 now, yet at the time of the alleged infringement she was a minor — 16. Let me remind you that it is a hardcore pornography case: what questions do you think our Biblical scholar would ask her? “Did you ever witness your father masturbating to X-Art’s porn?” “What kind of porn do you prefer yourself?” I wouldn’t bet that our purported officers of the court didn’t consider such questions. I wouldn’t even bet if those lost souls understood why this development angers me (and I’m sure you too).



In an email sent to the defense on January 6, 2016, the troll implicitly suggested that Amber (again, 16 years old at that time) is a suspect:

As a resident of your client’s household and user of the computers and internet that were used to commit the infringement, Amber has information that is relevant to this case. This is especially so in light of the fact that your client denies having personally committed the infringement and your representation that he will not stipulate that she did not commit the infringement because “he has no certain knowledge regarding” the same. As such, the deposition is proper and we will oppose your motion(s).

On 1/18/2016 the defendant filed a motion to quash the deposition subpoena and for a protective order, which told an even more gruesome story:

4. Defendant’s counsel also express that such testimony was pointless, improper, and only designed to humiliate the Defendant. 5. On or about November 10, 2015, AMBER received notice with her family that she has advanced Type I Diabetes, with substantial pancreatic failure. 6. AMBER is presently being treated […]. 7. The treatment has serious physical and psychological side effects, leaving AMBER in pain throughout the day. 8. Equally disconcerting is why Plaintiff found it necessary to depose Defendant’s daughter, who would have been only sixteen (16) at the time of the alleged infringement, regarding a case of alleged porn sharing, and not Defendant’s wife or son.

Not surprisingly, the troll doubled down. Malibu filed an opposition arguing why harassing a minor is justified:

Plaintiff’s additional evidence list ties Defendant’s IP address to BitTorrent infringement of numerous third party works. Many of the third party infringements correlate with Defendant’s daughter’s Facebook “likes” including but not limited to: “Drake,” “American Dad,” “Arrested Development,” “Community,” “Doctor Who,” “Family Guy,” “Futurama,” “Modern Family,” “The Big Bang Theory,” “Lana Del Ray,” and “Trey Songz.” There are approximately one hundred (100) files on Plaintiff’s additional evidence list that correlate to Defendant’s daughter.

I don’t know if it is against the law to surveil a minor without parents’ consent — in any case it is just plain wrong. Grossly wrong.

Fortunately, the judge quashed the deposition subpoena on 1/19 and took the protective order (“preventing Plaintiff from […] harassing Defendant’s Daughter […]”) under advisement.

Yet Keith Lipscomb and Daniel Shatz continue pressing for a deposition: on 2/17 they filed “additional evidence”:

[…] Plaintiff is attempting to depose Amber to ascertain the extent of her involvement in the at-issue copyright infringement, and has moved for leave to amend its complaint in order to add a count against Defendant for contributory infringement.

I really hope that Judge Barksdale puts an end to this travesty.

So, what’s next, Messrs. Lipscomb and Schatz? Deposing Amber’s former schoolmates and teachers? Polygraph-testing neighbor’s kids? I, to be honest, don’t rule out anything anymore.

Updates

2/24/2016

Yesterday the defendant fired back. Particularly, he claimed that

A review of notices reveals that Comcast was noticed with 381 alleged violations. However, 350 of these are duplicates of the same six (6) files, in many cases with the same ID numbers and exactly the same timestamp. It appears here that the culprit is an IP tracking outfit by the name of Rightscorp. The tracking software that Rightscorp uses is obviously fatally flawed, and there the alleged violations sent to Comcast are highly suspect.

It gave me a chuckle: one shakedown outfit (Guardaley) that uses unverified, flawed tracking software makes an argument based on another shakedown outfit (Rightscorp), whose software is so reliable that Rightsorp destroyed the source code despite the duty to preserve evidence in BMG & Round Hill v. Cox Communications.

The following is also of interest:

[…] of the Expert’s opinion is relying on Mr. Pratzer [sic]. When Defendant sought to depose Mr. Prazter, Plaintiff’s counsel refused to disclose his location, refused to provide photo identification, and when the deposition was postponed to such circumstances, Mr. Prazter became unavailable for the entire months of February and March due to “traveling abroad.”

I would be surprised if I found out that Patzer is as real as Darren Griffin.

Yet the crux of the defendant’s opposition cannot be simper: the plaintiff’s expert found no X-Art pornography and no evidence of spoliation. Anything else is a fishing expedition and an inhuman, despicable attempt to leverage parental love.

2/25/2016

While I quoted Malibu saying that it “has moved for leave to amend its complaint in order to add a count against Defendant for contributory infringement,” I didn’t elaborate. In fact, it’s new and troubling tactic of keeping a non-provable case on life support. This addition to Malibu’s bag of dirty tricks (accusation of spoliation and perjury, deposing neighbors etc.) should be noted (and certainly fought against). The troll indeed moved to amend the complaint in order to add a claim of contributory infringement. In defendant’s words,

The Plaintiff contend that Defendant’s was a contributory infringer, under the premise that Defendant had knowledge through DMCA notices that went to a Comcast email account assigned to Defendant, who allegedly never took action to prevent or mitigate the infringement.

Defendant’s attorneys did a good job today opposing this new sleaze:

Given the unique nature of this case, and the parties associated with same, the Motion for Leave to Amend asks this Court to essentially hit reset, allowing Plaintiff to take another bit at the apple in hope of pinning some culpability to the IP Address allegedly used for downloading Plaintiff’s content. In addition to being highly prejudicial, it fails to present to articulate whose infringement the Defendant contributed to (an indispensable party). The recitation of the record provided as a justification for such gaping holes in the pleading is that it must have been someone around the house for an extended period of time, by process of elimination. Such logic is presented in the absence of any proof associating the geotargeted IP address with anyone in Plaintiff’s family, and connecting the possible of use of BitTorrent technology with the infringement alleged by Plaintiff.

3/9/2016

The judge didn’t put an end to this travesty: today she allowed the deposition of the defendant’s daughter. Judge’s naïvity is depressing:

There is no evidence suggesting the plaintiff is seeking to depose her for an untoward purpose.

The following “restrictions” are essentially a green light for asking the teen anything: Lipscomb and his minions are infamous for violating explicit court orders, so the troll probably scoffing at the vagueness of these “safeguards.”

The defendant’s daughter must provide herself for a deposition in Gainesville lasting no longer than 90 minutes. […] The plaintiff’s counsel must proceed with the utmost discretion and sensitivity, beginning with questions relating to computer use generally and progressing to more specific questions only if necessary.

3/15/2016

Today the defense asked the judge to reconsider her order and substitute an in-person deposition of the ill teenager with a written one:

In the Court’s wisdom, in light of Amber’s condition and potential for embarrassment / harassment, the Court appropriately limited the deposition to 90 minutes. A written deposition would ensure that Plaintiff is able to present all appropriate questions, without complications resulting from breaks associated with Amber’s condition. An important distinction (or clarification) is that a major shift in Amber’s blood levels or activation of her CGM may not require just a break from Amber’s questioning, but force Amber to withdraw from further questioning, resulting in a rescheduling. If there are fluctuations, it will force her to take medication that will impair her ability to respond to the questions, and create discomfort, nausea, etc… A written deposition would circumvent that risk, by allowing the deponent to proceed at her own pace, as her medications and conditions dictate.

The motion was necessary because Messrs Lipscomb and Shatz once again demonstrated a total absence of dignity (emphasis is mine):