Things have been getting more interesting on the Malibu Media
front lately. The company, which is responsible for 40%
of all copyright cases, has certainly faced claims of abusive
and seriously questionable
practices. But some new information suggests it goes much further down the rabbit hole of questionableness. Like Righthaven
before it, new accusations are coming out about some highly questionable shell games to try to hide what's really going on.
In this case, it's come out that behind all of Malibu Media's shady tactics, the folks actually pulling the strings (or, at least, heavily involved) may be the German company Guardaley, or one of its many sneaky shell companies. If you've been following copyright trolls for a while, you may recognize Guardaley as the shady company involved (secretly) in some of the original copyright trollery in the US, which was slammed in court
questionable technology that was at the center of its attempts to "identify" people to go after in the shakedown scam known as copyright trolling.
Guardaley had been laying low for a while, but back in April, Sophisticated Jane Doe over at FightCopyrightTrolls turned up Guardaley's secret playbook
, which was clearly not meant for public consumption. It is... quite a read. It highlights the various shell games and individuals involved -- and also notes how Guardaley can quickly churn out cookie cutter legal filings against the various individuals it "sues" (with the entire effort actually focused on getting people to pay them to go away). And, astoundingly, it basically admits that Guardaley will supply bogus "experts" to support the claims in court. From page 35 of the presentation:
Okay, now jump back to January, in which one of the lawyers representing Malibu Media admitted that the "expert" company it uses, IPP (a Guardaley shell) worked "pursuant to an oral contingency fee."
In other words, it was getting a cut of any money secured via these lawsuits and corresponding shakedowns. That's kind of a big deal: when your "expert witness" has a direct financial stake in the outcome, that means your expert witness is doing something very, very shady. No wonder Guardaley doesn't want the judges to question them too much.
For the past few months there had been some ongoing efforts to get various Malibu Media lawyers to reveal the details of their relationship with Guardaley/IPP and other related shells. Not surprisingly, Malibu Media lawyers are trying to block all of that. This finally resulted in an impressive filing from copyright troll fighter, lawyer Morgan Pietz, who accuses the company of champerty
-- a scheme to "buy into" lawsuits, something that is at the very least frowned upon, but more frequently against the law. Furthermore, Pietz notes that Malibu Media should have been proactively disclosing Guardaley's interest in the cases, but has not -- instead highlighting how the company (actually, its lawyers) has been "fighting tooth and nail all attempts by defendants to inquire about these arrangements." He even calls Guardaley "the German computer guys."
Separately, the filing dismantles Malibu's bizarre attempt to avoid this whole issue by blaming it on some other guy in Florida.
Malibu concedes that it did [disclose this information] here, and counsel
on the pleadings here in Maryland concludes that there could not possibly be any kind of breach of this
duty because lead national counsel in Miami, not counsel here, negotiated the improper witness
contingency agreement. Regardless of what local counsel here did or did not know, lead counsel in
Miami, whose firm presumably authored the early discovery papers in the first instance, and who
participated in the consolidated proceedings in this district before Judges Titus and Grimm, had a duty to
make sure this fact was disclosed to the Courts here and across the country.
The filing then goes into significant detail about the whole mess, under the wonderful title:
International Men Of Mystery: Tobias Fieser, Michael Patzer, Daniel Macek, Patrick Achache, Guardaley & The
Shell Companies, And The Software With A Name Nobody Seems To Know
The "software with a name nobody seems to know" involves constantly changing claims about what software is being used to identify people accused of infringement, along with the claims that this unnamed and ever-changing software is somehow infallible (despite Guardaley's tech being so discredited previously). In an amusing section, Pietz points out how quite clearly "fallible" the technology is:
In the letter Malibu submitted to Judge Titus and Judge Grim last year, they argued that IPP’s
proprietary software was literally “infallible.” ... In the opposition to the instant motion,
Malibu submits a declaration from Michael Patzer where he avers that “the PCAPs recorded the IP
address 76.100.228 [sic] infringing Plaintiff’s copyrights.” That is incorrect. Mr. Patzer left out three
digits in that IP address. This simply goes to show that no matter how “infallible” Malibu and Patzer
think the software and corresponding proprietary system they designed may be, there is always room for
human error, at either the input stage, or the output stage.
The filing highlights the similarities of these shell companies with the recent ruling against Prenda, and highlights increasing evidence of how the people above are really deeply involved in a bunch of shell games. It calls out evidence in a non-Malibu Media case, Elf-Man LLC v. Lamberson, which lays out more evidence
of an incredible circle of shell companies. I won't repost it here, but it's worth reading, just to see some of the crazy chain of shell companies. This is not the whole chain of crazy, but just a snippet
As the defendant’s own investigation revealed in Elf-Man, Crystal Bay Corporation, the
company Macek (and Patzer?) supposedly “worked for” ... was a
defunct South Dakota corporation, apparently incorporated in 2012 by a disbarred lawyer who,
according to his website, “now specializes in creating ‘anonymous’ ‘shelf’ corporations.” .... The official address Crystal Bay Corporation registered with the South Dakota
Secretary of State? It belongs to a mail forwarding company, and it is the same address given for the
disbarred lawyer’s “Agent Services” company.... Same thing with the Stuttgart, Germany
address given for Patzer and Macek: it corresponds to an office building in Stuttgart “that offers mail
drop services and short term office rents, even by the hour.” ... The Elf-Man defendant also
investigated the phone numbers given for Patzer and Macek. The regional code for Macek’s number
corresponded to Karlsruhe, Germany. The regional code for Patzer was for a suburb of Karlsruhe....
The coup de grace from Elf-Man: when defense counsel there recently called the (Karlsruhe)
phone number given for Macek in the initial disclosures in that case, the person on the other end of the
line answered it “Guardaley.”
Boom. Also, there's the part in which one of the guys admits he works for one of these shell companies and then has to be lead by Malibu Media's lawyer into saying he didn't actually work for the company:
More importantly, the testimony Malibu complains Pietz omitted only further supports the
argument that Guardaley = IPP = Excipio, and that Patzer, Fieser, and Macek are all part of the same
organization. For starters, at the beginning of Patzer’s testimony, he first says “yes” when asked if he
works at IPP Limited.... Malibu’s counsel then asks him a leading question,
reminding him that “you don’t actually work for IPP, Limited. You said you work for a firm that
provides these services to IPP, Limted, correct?” and Patzer confirms that.... However, throughout
Patzer’s testimony, he constantly refers to “we” when it is clear he is referring to IPP. None of that
suggests that Excipio is really a totally different company that should be credited as possibly more
trustworthy than Guardaley; it suggests Patzer thinks of himself as working with Fieser at IPP.
And, of course, days after this was filed, the lawyer who had been representing the copyright holders in Elf-Man, Maureen VanderMay, suddenly filed a motion to withdraw
as counsel, noting that "issues have arisen between Plaintiff's representative and counsel, the nature of which make it impossible for counsel to both continue with representation and comply with the governing rules of professional conduct." However, she refuses to detail those reasons, citing their "privileged and confidential nature," though says that if required to, she would like to do so under seal. It's not too difficult to put two and two together here, suggesting the likely issue is that VanderMay realized how much trouble everyone involved in this scheme may be in soon. And, anyone who witnessed both the Righthaven and Prenda debacles knows that random outside lawyers who help out are the first ones often thrown under the bus in these disputes.
There have been stories for quite some time suggesting Malibu Media was, in some ways, worse than Prenda. Now, it appears that it may have been Guardaley and its rotating crew of shell companies behind all of this all along -- something they'd mostly been able to keep quiet. However, it looks like the scheme may be starting to unravel. Now, we just need Pietz to put together one of his infamous org charts
like he did with Prenda.