Copyright Troll Malibu Media's 'Expert' Witness Appears To Be Totally And Completely Clueless

from the wtf? dept

We've written many times about Malibu Media, a massive copyright trolling operation that creates porn under the name X-Art and then shakes down people it claims are downloading it. There are tremendous similarities between Prenda Law and Malibu Media, but while Prenda Law has been buried under a series of rulings that it needs to pay up for abusing the judicial system to shake down people, Malibu Media has mostly been able to avoid such situations -- mostly by rapidly trying to get out of any case at the first sign of potential trouble. But, before that, it's been known to pull some pretty sketchy moves -- and sometimes gets weirdly aggressive in going after people who have a tremendous amount of evidence that they're innocent. While we've covered a few cases here and there, FightCopyrighttrolls.com has basically turned into a site reporting all things Malibu Media.

It's from those guys that I first caught wind of Malibu Media v. Jesse Raleigh based initially on a bizarre lashing out by Malibu Media's lawyer Jessica Fernandez (who works for Keith Lipscomb, the lawyer who appears to be the "John Steele" of the Malibu Media trolling operation) in the form of a Motion for Sanctions against Raleigh. The motion was oddly aggressive in arguing that Raleigh had misled Malibu Media in discovery and failed to produce certain items. The thing that caught my eye was specifically Malibu Media claiming that Raleigh had lied to them about not owning an "all-in-one computer." While searching through his Dropbox account photos they found some photos that they insisted proved that Raleigh did own an "all in one computer" that he had failed to produce during discovery:
That specifically caught my attention, because I'm personally quite familiar with what the picture is showing and it's not an all-in-one computer. It's a portable USB computer monitor that you can plug into a laptop to have a second screen. I know this because I'm somewhat obsessed with portable external monitors, and for quite some time the AOC monitor was one of the few reasonably priced options in the market. But it's just a screen. It's not a computer at all. In fact, if anyone at Malibu Media had done even the slightest research (i.e., opening up AOC's website) they would have realized that AOC doesn't make computers. It only makes monitors.

That got me somewhat interested in other parts of the angry demand for sanctions, as the whole thing seemed to be filled with half-assed claims that made no sense at all. For example, it used another image in his Dropbox folder, combined with a tweet from over a year later, to argue that Raleigh had a server that he never turned over.

Yes, showing a backup server in 2013 and then a tweet in late 2014 (13 months later) is somehow proof that "the" server is his? Huh?

Anyway, it turns out that the "source" of many of these claims is a so-called "expert" who shows up in plenty of Malibu Media cases named Patrick Paige. Not surprisingly, both FightCopyrighttrolls.com and DieTrollDie.com have pages detailing some of his past shenanigans.

Now, as Raul alerts us, Raleigh is seeking to limit Paige's ability to testify as an expert in his case, on account of the fact that he doesn't appear to know what the fuck he's talking about in his "report" about Raleigh's activity. There are a bunch of examples in the 15 page document, including the simple fact that Raleigh was working in another city far away, to which he was in the process of moving, on most of the days he was accused of downloading works back at his previous home. There's also the fact that while Paige's report goes on and on about Raleigh having the uTorrent client on his computer, the original claims from Malibu Media insisted that the downloads were all done with a totally different client, qTorrent.

It also highlights the ridiculousness of the whole "he admitted he has a server he didn't send us" bit above:
Paige tries to associate a random photo taken by Defendant on November 8, 2013 with an unrelated tweet sent on December 27, 2014, then he applies some absolutely false information to reach a wholly fabricated conclusion. That is, the metadata associated with the photo in Paige Report... clearly establishes that it was taken at the Modustri offices located at 38 Commerce Avenue in Grand Rapids on November 8, 2013. The 1-terrabyte server backup associated with the icon in the photo belonged to Modustri. The tweet issued on December 27, 2014 (over a year later) had nothing to do with the picture, and was referencing files that were turned over to Paige.... Moreover, Paige's assertions in... his Report is simply false-- the testimony and evidence is very clear... that Defendant stopped working at Silversmith, Inc. in early January 2013. Hence, Paige's erroneous presumption that the November 8, 2013 picture was taken while Defendant worked at Silversmith is just that -- erroneous. Again, all of the "red flags" apply here.
There's also a bit about the AOC monitor:
At the right side of the photo is an AOC monitor that Defendant still owns and Malibu is free to examine.... Paige, however, apparently envisioned that the monitor could have been an AOC all-in-one computer. From the notion that this was a possibility, he then concluded that it was an all-in-one computer. From that erroneous conclusion, he further concluded that Defendant was hiding computer devices. Clearly, this is the kind of speculation that the Supreme Court decided should not be erroneously clothed with the imprimatur of reliable by coming from an "expert."
Raleigh's lawyers leave out the fact that AOC doesn't even make computers. But if Paige is such an "expert" you'd think he'd be able to suss out that bit of info. Raleigh's lawyers point out that this is part of a pattern in which Paige is no expert at all, but rather just trying to manufacture anything that says Raleigh is guilty, often through accusations and guesswork:
It is clear from the nature of most of the opinions in the Paige Report that his conclusions are not actually deducible from his premises (and not even accounting for the falsity of many of his premises). This is somewhat understandable when one considers that his Report is the product of inductive logic rather than deductive logic. That is, if one starts with the assumption that Defendant is the infringer (as Paige has obviously done here), and then works backward to extrapolate the premises, one reproduces Paige's results. For example: (1) Paige assumes Defendant is the infringer; (2) Paige finds no evidence supporting that assumption on Defendant's computers and file storage devices; so (3) Paige concludes that Defendant withheld computer devices, hid evidence or lied. The problem with that type of reasoning is that the initial premise (which is actually the conclusion) is not supported by the syllogism.
The filing also notes a rather startling omission from Paige's so-called "expert" report: the fact that he was unable to find any evidence whatsoever of the claimed infringing files on Raleigh's hard drives. That seems like an important point... but as Raleigh's lawyers point out, it appears to be par for the course for the supposed "expert" Paige. In a similar case nearby a few months back, a court had to actually order Paige to supplement his "expert report" with the answer to the question of whether or not the copyright material Malibu Media was suing over was found on the examined hard drives. In response, Paige never made the necessary additions. Instead, as Raul points out, Malibu Media turned tail and ran, filing to dismiss the case.

When the whole Prenda thing went down, we were somewhat surprised at how long it took for courts to actually put an end to it. And while multiple courts have called out Malibu Media's bad copyright trolling behavior, it still hasn't faced a real reckoning, a la Prenda. Instead, it seems able to slip out of basically any of the cases where it runs into serious challenges. Given that, don't be surprised to see Malibu Media suddenly have a change of heart in the Raleigh case as well.

Still, it would be nice to see Malibu Media and its lawyer Keith Lipscomb finally face some sort of consequences for what appears to be a clear abuse of copyright law and the judicial system to squeeze cash out of gullible individuals.



Reader Comments (rss)

(Flattened / Threaded)

  1. identicon
    Pixelation, Jan 26th, 2016 @ 2:18pm

    Popcorn, get your popcorn here!

    reply to this | link to this | view in thread ]

  2. icon
    madasahatter (profile), Jan 26th, 2016 @ 2:19pm

    Not Surprised

    The trolls seem to count on the average judge being technically illiterate if not incompetent. However, that is a very risky strategy if they run into either a judge, defendant, or opposing attorney who actually is technically literate and competent.

    reply to this | link to this | view in thread ]

  3. identicon
    Anonymous Coward, Jan 26th, 2016 @ 2:28pm

    "if anyone at Malibu Media had done even the slightest research (i.e., opening up AOC's website) they would have realized that AOC doesn't make computers. It only makes monitors."

    As if anyone at Malibu Media is going to do any research whatsoever. They just throw everything and anything that they feel that they can get away with at the court and then see what sticks to win their case. To them its not for them to disprove the facts but for the ones that they have brought a case against to disprove the facts of Malibu Media.

    reply to this | link to this | view in thread ]

  4. identicon
    Raul, Jan 26th, 2016 @ 2:39pm

    In this case it seems the attorneys representing Malibu Media are trying to pound the defendant into submission (settling) by ratcheting up his legal fees defending his innocence. Malibu Media's motion for sanctions, which was denied today, is only the most recent example.

    reply to this | link to this | view in thread ]

  5. identicon
    Raul, Jan 26th, 2016 @ 2:49pm

    Defendant's attorney nicely summarizes Malibu Media's business model in his opening in the draft brief to preclude or limit Paige from testifying:

    "Malibu Media is a prolific "for profit" copyright litigator and producer of pornographic videos that makes money through the seeding of the internet with its copyrighted pornography,1 and by then suing or threatening to sue those individuals who "take the bait" (so to speak) and download Malibu's pornography. Malibu also sues people, like your instant Defendant, who have not downloaded Malibu's pornography.
    Because Malibu's business model relies on intimidation, it cannot afford to ever admit that it has sued an innocent party, because that would reveal the weakness in its general ability to prove infringement cases. Instead, when discovery fails to support the allegations contained in its Complaint, Malibu alleges that the wrongfully sued person must have hidden the evidence."

    reply to this | link to this | view in thread ]

  6. icon
    Anon E. Mous (profile), Jan 26th, 2016 @ 2:51pm

    In my opinion the problem with this case Malibu has is that their so called proprietary tracking software or magic box can only give them so much information such as the IP and the torrent client used to download the file and date and times.

    One would have to think that inst a whole lot to go on ( Malibu seems to think it's a lot to go on ) so they launch phase two once they get their subpoena granted to get the ISP details for the IP address and the customer information.

    This is where Malibu's "Investigation" starts to try to assemble anything they can find about the ISP subscriber thru social media accounts ( Twitter, Instagram, Facebook ) and try and hoover up any information they can use such as a movie you liked or went and saw, a song, tv show you liked, if you bought any electronics and posted comments or pictures about any of those subjects, what you do at work, what you do at home where you live and have lived who you work for and what you do for them.

    This is all gathered up and then they work thru it and try and assemble what they consider evidence to back up their claim that you or someone in your house downloaded their copyrighted work.

    It is all gamed at helping them if you deny being the infringer. Then they can say, well Bob has shown that he likes movies and he likes this or that kind of movie. Or Bob had indicated he only has a laptop but in the pictures on twitter he is using an IPad at some point.

    And heaven forbid if you have a torrent client, then they will really pour it on to say well Bob is well versed in using torrent and downloading them and someone at bobs house used a torrent client to download our clients movies.

    So in my opinion when Malibu runs up against someone who denies downloading their movies, what do they do, they try and point to missing devices and devices that weren't turned over and spoilation in the defendant wiped their computer or failed to turn over all devices and other levels of histrionics that they can add to salvage their case

    Malibu then takes any of those above mentioned things and basically tells the court this in a motion. As for Paige's expert report, it seems to be in my opinion more full of assumptions than any hard evidence of infringement. No Malibu movies found or traces of them, no infringement one would believe.

    The trolls are loathe to walk away empty handed, they try and stay in as long as they can in hopes of wringing some cash out of the poor ISP[ subscriber, and if Malibu fails to do that and thinks they are in trouble they ask the court to dismiss the case and no award the defendant any fees.

    The sad thing is, the courts let the trolls use them to achieve their settlements goal. As one of the ,most prolific copyright trolls Malibu knows that the chance they get hit with costs is a very small percentage to what they will rake in thru settlements.

    I believe Malibu has filed somewhere around 4000+ copyright lawsuits, and even if they took in $3500.00 from just 2000 of the lawsuits filed... do the math and that's a nice chunk of change for little cost

    reply to this | link to this | view in thread ]

  7. identicon
    Raul, Jan 26th, 2016 @ 3:03pm

    Re:

    Very nice chunk of change indeed. https://t.co/mmJD9B35yD

    reply to this | link to this | view in thread ]

  8. icon
    Ehud Gavron (profile), Jan 26th, 2016 @ 3:35pm

    These are not the downloading droids you're looking for...

    ...or the computer you're looking for is no longer here, "...because the snark was a boojum, you see" - L. Carroll

    reply to this | link to this | view in thread ]

  9. icon
    That Anonymous Coward (profile), Jan 26th, 2016 @ 4:14pm

    Mike, a slight correction.
    AOC did make an all in one computer at one point.
    http://www.computershopper.com/desktops/reviews/aoc-mysmart-all-in-one-android-pc-a2472pw4t

    But rather than look for evidence if it was a monitor or an all in one device, assumptions were made by an "expert" that were being made , IMHO, to set the groundwork to file a sanctions motion.

    When cornered MM likes to have a backup plan, and that plan is to keep running up costs. As history has shown us even in cases where MM can't show ANY evidence of the file being on the targets computer they try to build a sanctions case to push for a large cash reward... so that people take the walk away.

    They filed a copyright infringement case, why are they given access to the defendants photos? The case is over a video file of which there is NO EVIDENCE, yet they proceeded to attempt to build something in hopes of obtaining money or acquiescence to them running away.

    One is troubled that in a civil matter the courts have granted a legal team, that has a history of violating court orders, unfettered total access to defendants lives. Courts seem willing to accept that the lack of evidence is evidence, and rumor and innuendo as fact.

    The claim is the defendant downloaded the movie(s).
    The absence of those movie(s) is then presented as proof of guilt.
    How does one prove a negative? I never downloaded the file, well show us proof you didn't.
    OH LOOK A LAPTOP IN A PHOTO YOU WERE HIDING YOUR SECRET PIRATE MACHINE!

    These cases move forward because having a penis means you are guilty. So what if the target is a woman there must be a penis somewhere now make her pay us!

    One wonders how an alleged blink of an eye transaction justifies allowing this legal team this level of access to peoples lives. We can't show they downloaded it, but they liked this TV show on FB and we allege to have a blink of and eye transaction connecting the ip address to downloading an episode of that show so they are totes guilty of downloading our porn. And if you don't believe that we have an expert who has decided all of these things show a giant conspiracy to hide the real computer from us where the target did all of the horrible downloading.

    This legal team can't manage to clone a hard drive turned over to them before returning it... and we trust their ability to protect the data and access to targets lives?

    reply to this | link to this | view in thread ]

  10. identicon
    Anonymous Coward, Jan 26th, 2016 @ 4:21pm

    Re:

    When it cost more to defend than it does to settle there is a problem in the justice system.

    reply to this | link to this | view in thread ]

  11. identicon
    Anonymous Anonymous Coward, Jan 26th, 2016 @ 4:38pm

    Re:

    So, he is not JUST an idiot clueless droid, it's a career and he is striving to excel.

    reply to this | link to this | view in thread ]

  12. icon
    Matthew Cline (profile), Jan 26th, 2016 @ 4:47pm

    Subpoenaing all-in-one computers?

    Why would a subpeona be so specific as to ask for something like all-in-one computers, as opposed to something like "all drives to which the respondent has write access"?

    reply to this | link to this | view in thread ]

  13. icon
    That Anonymous Coward (profile), Jan 26th, 2016 @ 5:45pm

    Re: Subpoenaing all-in-one computers?

    Because then they run the risk of a business paying to object to the overbroad terms.

    It isn't about them asking for the right things, it is about hoping something is overlooked that they can then hold up as "evidence" of spoliation to make up for the fact they can't find any evidence the account holder downloaded the porn. Can't get them to settle or show they are guilty, cloud the water & pray the Judge sides with your expert and if all else fails dismiss without prejudice so they can't get their court costs to make up for making them miserable for months.

    reply to this | link to this | view in thread ]

  14. icon
    That Anonymous Coward (profile), Jan 26th, 2016 @ 7:17pm

    Re: Re:

    Of which they will most likely never see a dime, however they will use the "win" for PR purposes & mind games to show how much you could end up losing if you don't pay their "reasonable" settlement request (read extortion IMHO).

    Given it takes them in several extensions of time before they even bother to name the target, even after they had the name months prior, one does have to question if they bothered to actually serve anyone in the case. It is very hard to defend yourself when you don't get an invitation to the party.

    Of course the document might be overlooked as yet another BS letter from those assholes demanding you pay them money who are blanketing your life in threats of going to the poor house or having them ask your neighbors if they downloaded the porn in question using your connection. Doesn't everyone have understanding neighbors who would give you the benefit of the doubt in the face of lawyers talking about crime and lawsuits?

    They insinuated previously that their targets DL'd CP and bestiality and were putting that on the public record... any wonder they got nice settlements? Oh and when a court decided perhaps they weren't playing fair... dinged them for a pitiful amount of money. They have violated court orders and "mistakenly" released targets names on the record, got a tiny slap. How unfair is it that even when the court is aware that the allegations are damaging & a tool used to extract settlements (deserved or not) to make it all go away, places protections in place, and they are ignored?

    reply to this | link to this | view in thread ]

  15. identicon
    aerilus, Jan 26th, 2016 @ 8:55pm

    dont know what law school they went to but if your going to extort money for porn it shoulden't be high class artsy stuff your porn should be the really filthy stuff.

    reply to this | link to this | view in thread ]

  16. icon
    That One Guy (profile), Jan 26th, 2016 @ 10:46pm

    See this? Fix it

    but while Prenda Law has been buried under a series of rulings that it needs to pay up for abusing the judicial system to shake down people, Malibu Media has mostly been able to avoid such situations -- mostly by rapidly trying to get out of any case at the first sign of potential trouble.

    ...

    When the whole Prenda thing went down, we were somewhat surprised at how long it took for courts to actually put an end to it. And while multiple courts have called out Malibu Media's bad copyright trolling behavior, it still hasn't faced a real reckoning, a la Prenda. Instead, it seems able to slip out of basically any of the cases where it runs into serious challenges. Given that, don't be surprised to see Malibu Media suddenly have a change of heart in the Raleigh case as well.


    Take away the ability for copyright/patent trolls to pull this stunt, whether by making it mandatory that if they drop a case they must pay the legal fees of the other side, making motions to dismiss count as with prejudice, barring them from trying the same elsewhere, or both, and trolling would become a lot less attractive a way to make a quick buck practically overnight.

    So long as it costs more to defend yourself than it does to just pay the extortion demand, so long as even winning the case means nothing more than the accusations against you dropped, with all the time and money spent gone, and so long as a troll can simply drop a case once it looks like their mark is able and willing to fight back with absolutely zero penalties imposed against them for dragging someone through court in an attempted shakedown, trolling is and will continue to be a viable, if incredibly sleazy, 'business' practice.

    reply to this | link to this | view in thread ]

  17. icon
    That Anonymous Coward (profile), Jan 27th, 2016 @ 2:00am

    Re: See this? Fix it

    IIRC sanctions motion was denied...
    expect petulant dismissal without prejudice in 3...2...

    reply to this | link to this | view in thread ]

  18. icon
    That Anonymous Coward (profile), Jan 27th, 2016 @ 2:09am

    Re:

    It is about striking the proper balance.
    If your "client" makes gonzo edgey porn you might hit people who think they had it coming and deserve it for being so outlandish.
    When you put the poor troubled tearful wife of the poor husband and wife duo in the frame, you get more sympathy. We are just a couple of people under attack by these evil downloaders.
    Porn gets the standard look down the nose from society and if your target has any standing in the community they will settle quickly and quietly to avoid the neighbors being deposed or their name being publicly linked to porn and "stealing".

    That is part of the reason to takes them so many extensions of time to name and serve a target. They look into the backgrounds of the people and make a decision if they can cough up enough cash to make it worth the effort. If they can find a social media account where they mention liking something that MM can link to other alleged recorded infringement.

    They tried the linking targets to CP & Bestiality titles on the public record, then they just suggested there was more evidence when a court spanked them for going to far.

    They know what they are doing, problem is the courts haven't figured it out yet... hopefully this shredding of the "experts" work will rock their system.

    reply to this | link to this | view in thread ]

  19. identicon
    Anonymous Coward, Jan 27th, 2016 @ 2:16am

    I bet malibu wishes they could just claim national security and have all their nonsensical "evidence" be filed away as inviolate and undeniable of the guilt of the defendant.

    Since they would never be called out on it as being nothing but lies.

    reply to this | link to this | view in thread ]

  20. identicon
    SJD, Jan 27th, 2016 @ 7:59am

    In a similar case nearby a few months back, a court had to actually order Paige to supplement his "expert report" with the answer to the question of whether or not the copyright material Malibu Media was suing over was found on the examined hard drives. In response, Paige never made the necessary additions. Instead, as Raul points out, Malibu Media turned tail and ran, filing to dismiss the case.


    Some more (disgusting) detail about that case: http://fightcopyrighttrolls.com/2014/09/28/malibu-media-blackmail-deep-in-the-prenda-territory/

    reply to this | link to this | view in thread ]

  21. icon
    WDS (profile), Jan 27th, 2016 @ 6:37pm

    Disks

    I don't understand why the courts continue to allow MM to take entire hard drives with people personal things on them, when there is case president that says you don't have to turn over your entire database, just the relevant records.

    I know the argument is "How do we know they turned over all the relevant records". I think the courts should be appointing their own experts to review the hard drives and just report back to MM on if their movies (I use the term loosely) were found and if their is evidence that they were there and deleted. Giving the trolls unfettered access is ridiculous.

    reply to this | link to this | view in thread ]

  22. icon
    WDS (profile), Jan 27th, 2016 @ 6:40pm

    Re: Disks

    There, their, they're. Yes I know the difference. My typing fingers don't always.

    reply to this | link to this | view in thread ]

  23. icon
    That One Guy (profile), Jan 27th, 2016 @ 9:26pm

    Re: Disks

    'Because copyright. '

    All logic and limits go flying out the window the second someone utters those magic words.

    Guilty until proven innocent(and not even then as these trolls demonstrate), fines in the tens or hundreds of thousands for something that can be purchased for under $50, secondary/tertiary or more distanced 'liability' rather than just blaming the guilty party and holding them accountable...

    The second 'copyright' enters the picture, sanity leaves the room.

    reply to this | link to this | view in thread ]


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