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, 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 and 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.

Filed Under: copyright, copyright troll, copyright trolling, expert, harassment, jesse raleigh, patrick paige
Companies: malibu media, x-art

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  1. icon
    Anon E. Mous (profile), 26 Jan 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

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