Court Rejects Liberty Media's Attempt To Say NY Defendant Can Be Sued In California

from the jurisdictional-issues dept

Thu, Oct 6th 2011 10:40pm — Mike Masnick

We've been quite critical of some of porn company Liberty Media's copyright trolling efforts, in which the company is using what we believe to be questionable legal theories to pressure people into paying up. We still find it interesting that the lawyer for Liberty Media, Marc Randazza, is also the main lawyer who has been putting so much pressure on Righthaven in many of its cases. Marc continues to see the two situations as quite different, but to us they still seem to be the same basic situation: using broad copyright claims, with sometimes questionable evidence, against individuals -- for whom the threat of statutory damages could be crippling. In some ways, Liberty Media's efforts could be seen as worse than Righthaven's, because as a gay porn producer, anyone they threaten who is not publicly "out," may feel a much, much stronger threat, as being named in such a lawsuit may effectively out what they considered to be private information about their sexual interests.

Either way, it appears that Randazza and Liberty have been getting enough info on IP addresses to file lawsuits against named defendants rather than just John Does, but one of the big issues in these lawsuits has been the jurisdictional question. Suing someone far away from their home makes a lawsuit even more challenging, and potentially makes them more willing to just settle up, even if they're innocent. Many previous court rulings have suggested that, for activities online, plaintiffs can't just assume that their home turf is the proper jurisdiction, because they have to show actual harm in that jurisdiction. In fact, we were a bit surprised and disappointed earlier this year, when a ruling in NY seemed to go against that precedent and suggest that a copyright holder could sue anyone on its home turf. Of course, that ruling only applies to NY.

In one of Liberty Media's filings -- which was done on Liberty's home field in California -- a defendant asked for dismissal for lack of jurisdiction, which the court has granted, dismissing the case. Liberty argued that because it was in California, and the defendant knew that the company was in California, any file sharing was enough to show harm in California. The court didn't buy it. In part, some of the problems were specific. Liberty pointed to the terms and conditions on its website (of which the defendant had been a member), but the court points out that nothing in this case seemed to involve the website. The content was claimed to have come from a DVD, rather than the website. The court also notes that there doesn't appear to be any conduct by the defendant expressly aimed at California, and points out that "mere web presence is insufficient to establish personal jurisdiction."

Thus the case was dismissed for lack of personal jurisdiction. Of course, the court left room to amend the complaint, and Randazza has indicated that he intends to do just that, with enough info to establish the personal jurisdiction in California.

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Filed Under: copyright, jurisdiction, marc randazza
Companies: corbin fisher, liberty media

33 Comments

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Anonymous Coward, 6 Oct 2011 @ 11:53pm

What's your Porn Name?
Is it me or does Marc Randazza sound like a gay porn star?
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That Anonymous Coward (profile), 7 Oct 2011 @ 1:20am

Re: What's your Porn Name?
Evan Stone had a better name... well until he basically flipped off a judge and got sanctioned.
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That Anonymous Coward (profile), 7 Oct 2011 @ 2:01am

Considering the latest round of threat letters Mr. Randazza is sending out outing gays isn't the lowest point he is willing to sink to.

"Although we have only caught you stealing one movie, it is our intent to forensically examine every single hard drive and other electronic storage device in the gouse, and to depose all members of the household. Thus far, I have yet to find and intellectual property thief who only steals on movie. In any event, I very much doubt that someone who stole Down on the Farm only stole that movie and not many other adult entertainment films."

"If you challenge jurisdiction, you will either fail in your attempt or you will find your victory to be very pyrrhic."

So I am guessing scorched earth is the new attitude.

Mr. Randazza, because I know your ego will not allow you to bypass any story covering you as the copyright troll you are, want to go double or nothing?
You always run from me when I get to the threads here, but you have your staffer following my every word on that other website.
Having had to talk far to many people off the ledge your "expert" claimed they would not get onto in preparation to jump, I grow weary of your behavior.
You represent a tired porn brand, that rather than innovates has decided litigation is the solution to business loss.
CF/LMH is not loosing the money to people sharing the cliched mediocre "str8" guy porn, the loss of money is due to the fact that you can watch every single release and its ENTIRELY THE SAME even with the same looking blond in every one of them.
Then we can question your actions of moving the studio to avoid the tougher possible legislation for the health of the "stars" CF/LMH chews up and spits out.
And never should one of the former stars ever pretend he worked there and use a publicity shot, you'll sue for millions.
Any comment on LMH/CF taking advantage of people in other countries to produce bareback videos?

I challenge you, AGAIN, to name the expert you claimed said that suicide was not a possibility from your "litigation" tactics.

I challenge you, AGAIN, to produce your contract with the germans, to back up your weasel worded denial that CF/LMH are not behind the seeding of the file in question. The germans work for/with you, they have a history of using a contract authorizing honey pots of the actual files and well you have not exactly inspired faith in "your word".

I challenge you, AGAIN, to refute the persistent claims of your "staff" arranging a settlement, getting an admission of guilt and then yourself contacting the poor sap saying you never authorized such a low settlement figure and demanding much more than the agreed upon amount.

You make ACS:Law look like fools, as you have been matching subscriber data from the website with the ISP records. I do believe nearly every named case you have moving forward is against former clients of the CF website. ACS had to pay for record searches to make sure their targets had money, you just match them to what you already know.

I haven't been keeping up, I know bad of me, did you finally get bar certification in Nevada?

Any comment on the mass cases that are beyond the 4 month period that by law you need to name people or drop?

I've not had a large influx of new people terrified of you recently, are you finding the work of trying to terrorize 20 somethings taxing on the resources you set aside to shake them down?

What is your stake in LMH?
I haven't needed to turn my full attention to you, your threats are laughable, and well honestly once you run out of CF subscribers to scare we both know you will NEVER take a single one of these cases to court, unless the victim tells you they did it.
The fatal flaws in IP Address tracking provided by the germans is well documented in German courts, we have the paper out of the University about the framed laser printer, and well the rest of the trolls bumbling around are providing all kinds of doubt as to the accuracy rate.
Steele admitting his supersekrit never wrong system made a mistake in claiming a 70 yr old was a bittorrent pirate.
USCG suing then dropping the case against the Grandmother who didn't even own a computer.
The lawyer who told a Judge that well the IP address wasn't enough now let me search all of the computing devices in my targets home, ignore what I said in the filing about it being proof positive.

Hopefully you were smarter than Steele who seems to have used the Rightshaven playbook to assign only the right to sue from the copyright.

Hell the others gave up and kicked the can and are hitting Canada and Australia now, the US market is done for the shakedowns.

So really, other than sometimes wrapping yourself up in the big free speech advocate cape to cover up that your just as slimy as those you go after... what was it all for?

1 thing still remains constant here Mr. Randazza...I am smarter and faster than you.

I am and remain.
TAC

PS - you can block SJD on twitter, but you can't silence us telling the world trolls walk among them.
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Anonymous Coward, 7 Oct 2011 @ 2:29am

"Liberty Media" sounds like another one of those "Department of Justice" oxymoron's.
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That Anonymous Coward (profile), 7 Oct 2011 @ 3:37am

Re:
Liberty Media Holdings not to be confused with Liberty Media.
One is responsible for QVC the other owns a porn studio.
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George Costanza, 7 Oct 2011 @ 4:32am

Re: What's your Porn Name?
"What's your Porn Name?"

Buck Naked
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Anonymous Coward, 7 Oct 2011 @ 5:59am

Re:
I have never been able to read one of your posts from start to finish. What are the kids saying? tl;dr?

Snores-ville, dude. You're not that interesting.
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Anonymous Coward, 7 Oct 2011 @ 6:53am

Randaza is sort of a douche huh? He comes off looking like a hero fighting trolls like Righthaven but then he outs gays through legal action? Any good will built up through his EFF cases is certainly lost with his association to Liberty Media. I don't understand how the EFF let's this guy straddle both sides of the fence like that. Almost makes me want to root for Righthaven now just so this guy gets his ego crushed.
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Anonymous Coward, 7 Oct 2011 @ 6:58am

So, Marc. I'm sure you disagree with the court. How'd the court get it wrong? Did the guy buy the DVD from the website? If so, wouldn't that invoke the forum selection clause? And what about specific jurisdiction? It seems to me that the guy did purposefully direct himself to California when he decided to commit a tort that would affect a party there.

The court says: "Without allegations or affidavits stating that Defendant distributed or aimed to distribute the work to California, Plaintiff has failed to satisfy the second element of the Calder test." But that misses the point. It's not that the work was or was not distributed to California, it's that your client, the plaintiff, is in California.

If I distribute illegally a DVD on the internet and the copyright holder is in California, then I can expect to be haled into court there because that's where I'm causing damage. Seems clear enough to me. I'd love to hear your thoughts.

And was all of this made clear in your amended complaint that you had to withdraw? If so, it seems like you just lost on a technicality. Of course, Mike's happy with the result, so you get a whole article on Techdirt!
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Anonymous Coward, 7 Oct 2011 @ 7:01am

Re:
He's a douche because he helps his client collect from those that do his client wrong? Yeah, what an asshole. I hate people that help victims get justice like that.
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That Anonymous Coward (profile), 7 Oct 2011 @ 7:03am

Re: Re:
Look mommy the troll came out from under the bridge, and he can't see his epeen... must mean 6 more weeks of stupid.
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Anonymous Coward, 7 Oct 2011 @ 7:17am

Re: Re:
He's a douche because he plays both sides of the fence. He is empoorer by a company that makes statements like:

The EFF praised the ruling, saying that such mass copyright cases are "little more than a shakedown scheme" in which plaintiffs run "roughshod over due process in order to extort settlements

Of course Marc is involved in the exact same shakedown, however much worse because of the gay porn factor.

The EFF should be ashamed for associating with this guy as it dings their own credibility.

And apparently you are a bigger douche for supporting Marc's flawed ethics.
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sophisticatedjanedoe (profile), 7 Oct 2011 @ 7:27am

Re:
+1

A bit of elaboration on P.S. I maintain a list of twitting copyright trolls. In twitter, the only way to be excluded from another person's list is to block that person from following. That was the actual reason why he blocked me. Otherwise blocking does not make much sense: I still can see all his tweets, I still can mention and reply.

Randazza, a self-proclaimed First Amendment fighter, used a technicality to stifle my free speech. Isn't it ironic to say the least?
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Anonymous Coward, 7 Oct 2011 @ 7:32am

Re: Re: Re:
I got to the ellipsis and had to stop reading. Snooze. I tried, dude, but sorry... you're a bore.
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Anonymous Coward, 7 Oct 2011 @ 7:41am

Re: Re: Re:
Shakedown? Hardly. You seem to gloss over the part where his clients had their rights violated by the defendants. It's not a "shakedown scheme" to go after wrongdoers. Give me a break.
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Anonymous Coward, 7 Oct 2011 @ 7:58am

Re: Re:
What an entitled asshole. I mean forget that it remains to be proved that anyone actually did his client wrong, they must owe money because they've got IP addresses so threatening anything up to and including public exposure for closeted gays or bis is fair game. That's your idea of justice? You're world view is seriously fucked.
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That Anonymous Coward (profile), 7 Oct 2011 @ 7:58am

Re: Re: Re: Re:
This assumes that the IP information being sold to him by the germans is actually true.
See they get paid a cut from each person they finger, so they have an interest in volume not quality.

Going after wrongdoers would involve him taking any of these cases to court so the facts could be settled, rather than his scare mongering to get paid.

Just because someone with a law degree says you must be guilty does not make the burden of proof go away, and even with the lessened requirements of civil cases he is arguing none of these cases in court.

Presumed innocent, maybe you've heard of it...
Threatening account holders with his own madeup version of the law...
Collecting money from people who might have never heard of Corbin Fisher, but their position can't take small minded peoples responses to the accusation of enjoying gay porn.

But really go on, explain how this isn't a miscarriage of justice to just extract money....
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Anonymous Coward, 7 Oct 2011 @ 8:01am

Re: Re: Re: Re:
You seem to gloss over the part where a shakedown is a word with a definition that you can't just brush away. Legal or not, justified or not, the operation is clearly a shakedown:
shake�down (shkdoun)
n.
1. Slang Extortion of money, as by the threat of exposing a criminal act or discreditable information.

It's a shakedown scheme. You can't brush that label off because you don't like it and feel it's justified. That's what it is by definition.
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That Anonymous Coward (profile), 7 Oct 2011 @ 8:02am

Re: Re: Re: Re:
I seem to have touched a nerve....
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sophisticatedjanedoe (profile), 7 Oct 2011 @ 8:21am

Marc Randazza should rename his lawfirm to "Janus Law". Unfortunately the domain and trademark are already taken by a guy who doesn't understand the irony.
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sophisticatedjanedoe (profile), 7 Oct 2011 @ 8:23am

Re: Re: Re: Re:
It's not shakedown. It's domestic terrorism.
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Anonymous Coward, 7 Oct 2011 @ 9:26am

Re: Re: Re: Re: Re:
I brush it off because it's deliberately chosen for its negative connotation. Offering to settle with someone whom you have reason and evidence to believe did you wrong happens everyday in every branch of law. I got a ticket the other day for making an illegal turn. The cop told me that they would offer to plead it down to a non-moving violation at the courthouse if I plead guilty. I guess that's a "shakedown" too, right? Give me a break. Happens all the time, every day, under all kinds of circumstances. You guys are just whining because it's happening to your pirate friends.
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sophisticatedjanedoe (profile), 7 Oct 2011 @ 9:54am

Re: Re: Re: Re: Re: Re:
One minor point: there is no evidence that could convince any reasonable judge...

You analogy won't fly either: if the cop pockets (or gets a cut) the money in question, than yes, it's shakedown, extortion, racket, name it...

One more surprise: I'm not a "pirate" and was caught in the middle of this fraud thanks to the "quality" of the evidence, so shut up. Saying that, I found myself more sympathetic to pirates, their ideas and views on copyright than to those righteous, heartless, cruel, greedy, double-faced and cynical attorneys.
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Anonymous Coward, 7 Oct 2011 @ 9:58am

Re: Re: Re: Re:
Apparently you don't follow these things. Filing a lawsuit against IP addresses just to abuse the judicial discovery process to obtain the ownership of said IP addresses so you can send extortion letters without ever intending to sue letter recipients is 100% a shakedown. The courts are beginning to recognize this and Randazza's case just got whacked because of this. You are either just willfully blind or ignorant in believing these legalized extortion attempts are not shakedowns. You probably believe lobbying is not legalized bribery.
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Anonymous Coward, 7 Oct 2011 @ 10:07am

Re: Re: Re: Re: Re: Re:
That's sort of but not the same thing. The cop is authorized to uphold the law and witnessed you personally breaking it. Not only that but he also has video tape evidence. In these shakedown cases, they have an IP address which doesn't finger a culprit directly, no witnesses, no videotaped evidence, the accuser can't pick you out of a lineup. Reducing to a plea bargain in light of concrete evidence from a state is a far cry from paying money to a non-lawful authority based on scant wvidence
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Anonymous Coward, 7 Oct 2011 @ 10:21am

Re: Re: Re: Re: Re:
Meh. I'm sure that rhetoric flies with others, but I'm not convinced. At first blush, I think the court's ruling is in error. I asked above if the fact that he was late on his amended complaint is to blame. Seems to me that there was jurisdiction here. As far as it being a "shakedown" goes, I'm just not moved by that word like you are. The fact is, thousands of people are teaming up to violate this plaintiffs rights. That it's economically unfeasible to sue each one individually isn't the plaintiff's fault. The blame lies with the defendants--all your nonsensical rhetoric doesn't erase this fundamental fact. Your friends brought this on themselves.
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Anonymous Coward, 7 Oct 2011 @ 10:39am

Re: Re: Re: Re: Re: Re: Re:
You can try and lay this all on the "scant evidence," but I suspect you'd whine no matter what the evidence. The evidence is strong enough to bring suit, so that means it's strong enough to offer to settle in good faith. Again, I think you just don't like it since your pirate friends are being affected negatively. I don't have any sympathy for them since they brought this on themselves. You seem to not understand who is the victim here--the plaintiff.
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sophisticatedjanedoe (profile), 7 Oct 2011 @ 2:07pm

Re: Re: Re: Re: Re: Re: Re: Re:
If not for my ethical quirks, I would be happy to trade places with my "victimized" plaintiff: ~250K in a couple of months given a couple of grands and a week of paperwork investment.
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Jeffrey Nonken (profile), 7 Oct 2011 @ 2:53pm

Re: Re: Re: Re: Re:
Don't worry about it. These guys just need to remember to take their Ritalin next t... OOOH, SHINY!
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That Anonymous Coward (profile), 7 Oct 2011 @ 7:45pm

Re: Re: Re: Re: Re: Re:
And there in lies the rub, "The fact is, thousands of people are teaming up to violate this plaintiffs rights.".

The fact is, thousands of people are getting letters demanding "settlement" payments for things THEY THEMSELVES MAY NOT HAVE DONE.
To "steal" the cop analogy I saw used earlier, the cop gives you a ticket because your neighbor made an illegal turn. He then tells you he will tell everyone you were on a street known for hookers and drugs if you even think about fighting the ticket. It doesn't matter you were not there, you did not do it, you were unaware of it, your responsible because this cop has his own version of what the law says.

Lets be clear -
There are people sharing a copy of the DVD of the porn.
There is no one making money "selling" these copies.
There are legal remedies, but they are only using enough to get names they can demand payment from.
They have no way to prove who did it, from the evidence given to the court.
They have said even if your unaware of this horrible crime because your name is on the account you MUST be responsible, but can point to no case law establishing this fact.
They use their knowledge of the law to abuse the process and are less than honest about the Does position.

You make the jump the lawyers wanted you to make, that you must be guilty... because they said so. You must be a pirate otherwise this would not happen to you.
Let me go to the extreme with that thought...
It is her fault she was raped. If she didn't wear undergarments from Victorias Secret she would have been fine. Because she had provocative undergarments she is a slut not a rape victim.

They demand payments from the name on the account, not the party who actually infringed the copyright. They have no way to know who was responsible, and do not care to try and find the party who has wronged them. They want a name to demand money from.
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That Anonymous Coward (profile), 7 Oct 2011 @ 7:56pm

Re: Re:
"he helps his client collect from those that do his client wrong?"
citation needed.

Other than a handful of named cases where people admitted guilt, please provide proof that anyone else accused in these cases is guilty.
Innocent until proven guilty applies even in the civil setting.
All of the evidence in this case comes from a firm with a financial stake in the outcome, and that evidence is an IP Address. IP Addresses can be faked easily, and there is a long list of flaws in how the collection of those numbers is done.

I think I saw you running from the bank that was robbed, now pay me $5,000 or we go to court and I tell people your a bankrobber and a pedophile.
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Any Mouse (profile), 8 Oct 2011 @ 6:40am

Re: Re: Re: Re: Re: Re:
Ahh, yes. It's negative to ME, so it doesn't qualify, but I'll use 'pirate' despite the negative and INCORRECT connotations because it supports my side. You can't have it both ways. If you must use 'soft' language, then you do it for both sides.
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Random Sample, 1 Jan 2012 @ 7:11pm

illegal turns and tickets
In a way it is. The connotation is "I'll cut you a break if you don't argue with me" However, by looking at the terms they appear to be a scorched earth technique. So if they believe you have violated any part of the agreement they send you the letter with all the terms.

The attorney refers to the terms (which may not be applicable due to local regulations.) and says you owe whatever amount of restitution.

They try to force a settlement so they can collect when the individual being pursued may have not broken any enforceable part of the contract. For example: A PC getting hacked, identity theft, etc..
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