Judge Calls Copyright Troll's Bluff

from the well,-this-could-be-interesting dept

Wed, Oct 10th 2012 8:07am — Mike Masnick

We've pointed out many times that copyright trolls never seem to have any interest, whatsoever, in having a case actually go to trial. The whole point of copyright trolling is just to use the power of the judicial system to scare people into settling and just paying. A number of judges have called them out on this in tossing out the lawsuits and preventing the trolls from going through with discovery to learn the identify of account holders based on IP addresses. However, a district court judge in Pennsylvania has decided to call a troll's bluff and more or less are forcing them to actually go through with a trial, something that so far every copyright troll has avoided. Judge Michael Baylson recounts the basic trolling strategy, noting that the plaintiff in this case, Malibu Media, admits that its entire goal is to get the contact info of people for the purpose of sending them demand letters. They even admit that if they don't hear back, they drop the case.

If the John Doe defendant refuses to settle, or Plaintiff has been unable to serve the complaint within the 120 days required under Rule 4(m) of the Federal Rules of Civil Procedure, subject to any extension granted by the court, with whatever information is provided by the ISP, Plaintiff dismisses the complaint against that defendant without prejudice to Plaintiff’s ability to commence a subsequent action against that defendant. In this fashion, Plaintiff has initiated hundreds of lawsuits in various district courts throughout the country, but has not yet proceeded to trial in any case.

The judge talks about a small group of (anonymous) defendants who have fought the case. He goes through a similar analysis as other judges about whether or not the joinder of so many defendants makes sense, and whether or not the process of never following through to trial makes sense. Like many other judges, he's concerned:

...the joinder of multiple John Doe defendants could very well lead to litigation abuses. The purpose of the joinder rules is to promote efficiency, not to use federal district courts as small claims collection agencies, by putting economic pressure on individuals who do not have substantive liability.

However, rather than just dismantling the cases and blocking discovery, Judge Baylson has decided to hold a "bellwether" trial involving just the five users who challenged the subpoena, to test the claims of the troll, Malibu Media -- and then notes that if it sees Malibu Media continue to act like other trolls, "picking off" individuals for confidential settlements, "the Court may draw an inference that Plaintiff is not serious about proving its claims, or is unable to do so."

The bellwether trial, then, will test Malibu's claims in court and see how well they do in front of a judge... for the first time for this type of copyright troll:

...the Court assumes that Plaintiff will welcome this opportunity to prove its claims...

That said, the court notes that it may seem unfair to "punish" the people who fought back and put all the others on hold, but notes that, given the circumstances, this makes the most sense:

The Court also acknowledges that the five John Does who will be defendants in the Bellwether trial are, in a sense, being penalized for filing motions challenging the third-party subpoenas presently at issue, given that all proceedings against the remaining John Does will be stayed until further order of the Court. In the Court’s view, however, under the present circumstances, this is the fairest and most efficient means of resolving these actions. These defendants have objected to Plaintiff’s strategy and two of them have filed declarations asserting that Plaintiff’s claims are false. A Bellwether trial is the best means of testing the viability of Plaintiff’s claims, as well as Plaintiff’s sincerity in pursuing them.

And, of course, he notes that should Malibu's case fail, they'll have some remedies as well:

In the event Plaintiff’s allegations cannot be sustained, the five John Does will have adequate remedies to recover most, if not all, of these litigation expenses and/or damages from Plaintiff, such as a Rule 54 motion for costs, a lawsuit for abuse of civil process, a Rule 11 motion for sanctions, and a motion to recover excessive costs under 28 USC § 1927. More fundamentally, as mentioned above, because this is a copyright case, a successful defense will likely result in an award of attorney’s fees to any John Doe who prevails...

In other words, these defendants really will need to prove that Malibu's evidence is weak, but if they succeed, the copyright trolling strategy could be in trouble. This case suddenly becomes a key one in the whole copyright trolling area -- and as such, I imagine that we'll see some interesting folks take an interest in the case. We'll certainly be watching it closely.

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Filed Under: bellweather case, copyright, copyright trolling
Companies: malibu media

119 Comments

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Anonymous Coward, 10 Oct 2012 @ 8:27am

He fed the trolls! lol
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- Anonymous Coward, 10 Oct 2012 @ 8:29am
  
  Re:
  but they might not like the taste
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- davnel, 10 Oct 2012 @ 5:47pm
  
  Re:
  "They even admit that if they don't hear back, they drop the case."
  
  Notice to all troll victims - do not respond, just ignore them. If they actually file against YOU (not likely), contact the EFF.
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Zakida Paul (profile), 10 Oct 2012 @ 8:47am

The trolls will be along in a minute to say that this judge is a pirate apologist and that he should burn in hell.
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- DannyB (profile), 10 Oct 2012 @ 2:37pm
  
  Re:
  But, if the judge were a pirate apologist, then wouldn't the judge try to prevent the copyright troll plaintiffs getting their day in court? Instead, he's insisting that they have their day in court.
  
  I would say that this judge is the opposite of a pirate apologist.
  
  This judge is actively helping the plaintiffs by providing guidance to future copyright trolls so that they know what NOT to do, ala Righthaven.
  [ link to this | view in chronology ]
  - IrishDaze (profile), 10 Oct 2012 @ 3:00pm
    
    Re: Re:
    I disagree. I think the judge is providing a roadmap to the defendants and their counsel on exactly what to do when Malibu's case crashes hard. Golf clap!
    [ link to this | view in chronology ]
TasMot (profile), 10 Oct 2012 @ 8:52am

Send in the Troops
I hope that Country Joe Lawyer for $15 an hour is not involved in the case. This is where the ACLU or EFF or somebody "extremely" familiar with copyright law can/will get involved to help the defendant's cases and get a proper precedent set with this case.
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- average_joe (profile), 10 Oct 2012 @ 9:03am
  
  Re: Send in the Troops
  I wouldn't get your hopes up too high. Seems to me that the bluff that's being called is that of the defendants. I'll be amazed if even one of them will chose to litigate this over just settling it.
  [ link to this | view in chronology ]
  - sophisticatedjanedoe (profile), 10 Oct 2012 @ 9:37am
    
    Re: Re: Send in the Troops
    What kind of perverted mind a person must have to read judge's intentions this way? Complete denial is it.
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    - Ninja (profile), 10 Oct 2012 @ 11:26am
      
      Re: Re: Re: Send in the Troops
      That. It couldn't be clearer that the judge is, in fact, worried about how it's not really fair to force the defendants to fight something they are probably innocent of. Welcome to the Denial World of AJ, where all your wet copyright dreams come true ;)
      [ link to this | view in chronology ]
Vidiot (profile), 10 Oct 2012 @ 8:53am

The real point of pain
Your Honor, let's go for broke on this one... plaintiff pays the Does' costs, and how about something punitive thrown in? There's no lesson learned if it's only Malibu's time and resources that are wasted; how about dipping into their pocketbook?
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- Some Other AC (profile), 10 Oct 2012 @ 12:02pm
  
  Re: The real point of pain
  I believe he is presenting multiple options for pay out from Malibu Media should they lose.
  
  "In the event Plaintiff�s allegations cannot be sustained, the five John Does will have adequate remedies to recover most, if not all, of these litigation expenses and/or damages from Plaintiff, such as a Rule 54 motion for costs, a lawsuit for abuse of civil process, a Rule 11 motion for sanctions, and a motion to recover excessive costs under 28 USC � 1927. More fundamentally, as mentioned above, because this is a copyright case, a successful defense will likely result in an award of attorney�s fees to any John Doe who prevails..."
  
  In the above from the article, it includes legal fees/costs, at least 2 possible sanctions(fines), a lawsuit option and option to recover excessive costs. Just for the five defendants this could get expensive very quickly for Malibu...
  [ link to this | view in chronology ]
Anonymous Coward, 10 Oct 2012 @ 8:54am

i dont see why there should be too much emphasis on the accused defending themselves, proving innocence, as on the plaintiff proving guilt! if all they have is, as suspected, IP addresses but no photos of the accused in front of the relevant pc starting a torrent off and then seeding after completion of a download, that is pretty poor evidence to give a conviction on
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- That Anonymous Coward (profile), 10 Oct 2012 @ 5:18pm
  
  Re:
  Because the standard in a civil matter, is more likely than not.
  
  It is likely that some of the Does identified are infact the people paying for an internet connection.
  
  It is possible that connection was used by "someone" to infringe on this pron, but that someone could be anyone within a radius of the router not just the Doe.
  
  Its a hard case to prove what device and person was using the connection. Often the troll just wants to shame payments out of people by threatening to connect their name to scandalous porn titles. This lead to the introduction of the "negligence" claims being tacked onto some of the troll lawsuits, claiming people who pay for a connection owe a duty to random company they never heard of to protect their valuable IP. That tugboat has been sunk in several courts now.
  
  It is not a matter of the Does having to prove innocence so much as it is showing how an IP =! a person, and that the lawsuit and settlement letters are not about getting justice but getting cash.
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average_joe (profile), 10 Oct 2012 @ 8:56am

I think the problem with the judge's plan is that these five defendants will likely prefer settling, especially once discovery commences against them in earnest.
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- Anonymous Coward, 10 Oct 2012 @ 9:05am
  
  Re:
  So far, it seems that it is Malibu Media who is afraid to step into the arena:
  
  "...the plaintiff in this case, Malibu Media, admits that its entire goal is to get the contact info of people for the purpose of sending them demand letters. They even admit that if they don't hear back, they drop the case."
  [ link to this | view in chronology ]
  - average_joe (profile), 10 Oct 2012 @ 9:29am
    
    Re: Re:
    We'll see if even one of these defendants chooses to litigate. Something tells me they all settle.
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    - sophisticatedjanedoe (profile), 10 Oct 2012 @ 9:40am
      
      Re: Re: Re:
      This "something" is called "wishful thinking."
      
      As a matter of fact, according to my sources, the judge is willing to accept sworn affidavits from defendants as a proof of their innocence if pornographers' evidence turns out unconvincing.
      
      Keep trolling.
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      - Anonymous Coward, 11 Oct 2012 @ 12:55am
        
        Re: Re: Re: Re:
        hahahaha
        
        Someone is engaging in wishful thinking here, and it isn't Joe.
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        Anonymous Coward, 11 Oct 2012 @ 6:00am
        
        Re: Re: Re: Re: Re:
        We know who sophisticatedjanedoe is, and so far her credibility was never questioned. ...but who the fuck are you?
        [ link to this | view in chronology ]
        
        That Anonymous Coward (profile), 11 Oct 2012 @ 12:35pm
        
        Re: Re: Re: Re: Re: Re:
        I'm putting odds on that being John Steele.
        He claims SJD, DTD, Me and the others are all wrong... except he trolls the websites posting FUD and trying to scare people.
        
        If he was so right why would he bother with us?
        Maybe because he knows we are right, we are killing his extortion mill off 1 Doe at a time, and he is scared shitless.
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    - Milton Freewater, 10 Oct 2012 @ 9:40am
      
      Re: Re: Re:
      Joe, there are 23 comments on this thread to date. Three of them are you saying "I just feel like they'll settle."
      
      Unless you're paid by the post, once is enough.
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      - Anonymous Coward, 10 Oct 2012 @ 10:04am
        
        Re: Re: Re: Re:
        He needs to calm his fears by constantly reassuring himself that everything will be "ok" and that the "alleged pirates" will settle. Because the alternative might turn out a lot uglier for him: he might lose an excellent tool of abuse of the legal system.
        [ link to this | view in chronology ]
      - Anonymous Coward, 11 Oct 2012 @ 12:59am
        
        Re: Re: Re: Re:
        Accusations of being "paid by the post" (even though no one is, tinfoil man) is apparently the new excuse by piracy apologists for ignoring cogent points.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 11 Oct 2012 @ 6:52am
        
        Re: Re: Re: Re: Re:
        I think the judge put a big pile of risk on both sides. He gave the plaintiffs a method of clearing themselves with limited costs to the plaintiffs and huge penalty to the accuser for not being able to back up their claims. I wonder if the accuser is considering paying the plaintiffs to settle out of court.
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    - Jordan (profile), 10 Oct 2012 @ 11:13am
      
      Re: Re: Re:
      Something tells me that this judge will be replaced by someone more... Bought and Paid For uh.. fair.
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      - sophisticatedjanedoe (profile), 10 Oct 2012 @ 11:31am
        
        Re: Re: Re: Re:
        If it was DC, not PA, I would share your premonition, but it is PA. In addition, Baylson was tasked with this by the PA chief judge.
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- Dark Helmet (profile), 10 Oct 2012 @ 9:14am
  
  Re:
  Given that all of the history indicates that copyright trolls like Malibu Media have no intention of going to trial and will drop a case the instant any actual work may have to be done, why would you assume any of the defendants, who have so far been willing to push back on the case, would prefer to settle?
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  - This comment has been flagged by the community. Click here to show it
    
    average_joe (profile), 10 Oct 2012 @ 9:24am
    
    Re: Re:
    Simple, because they probably are infringers and settling is far less risky and expensive. I don't think they'll want the plaintiff's technicians poking around their computers. And they certainly won't want a jury assessing statutory damages--plus their attorney's fees, the plaintiff's attorney's fees, costs, etc. If a defendant actually did the infringement, settling makes a lot more sense than litigating and losing.
    [ link to this | view in chronology ]
    - Dark Helmet (profile), 10 Oct 2012 @ 9:27am
      
      Re: Re: Re:
      "Simple, because they probably are infringers and settling is far less risky and expensive."
      
      So sayeth Average Joe, omnipotent seer? They've already shown that they're willing to engage the legal system to fight this. Your version of Occam's Razor says that's most likely because they're guilty? What the hell?
      [ link to this | view in chronology ]
      - average_joe (profile), 10 Oct 2012 @ 9:45am
        
        Re: Re: Re: Re:
        We'll see how far they push it.
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        Richard (profile), 10 Oct 2012 @ 12:16pm
        
        Re: Re: Re: Re: Re:
        The history of Davenport-Lyons and ACS Law in the UK suggests that the troll will squirm around a bit and eventually give up.
        
        The fact that the defendants have pushed back rather than settle in the first place suggests to me that they are innocent.
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        nasch (profile), 11 Oct 2012 @ 1:22pm
        
        Re: Re: Re: Re: Re:
        Interesting that you characterize someone defending themselves in court as "pushing it".
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      - Anonymous Coward, 10 Oct 2012 @ 9:48am
        
        Re: Re: Re: Re:
        We have to consider Omnipotent Joe's track record here. I seem to recall that AJ made certain predictions about certain websites which were taken down by ICE (rojadirecta, I think?) which didn't turn out to be very accurate.
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      - Anonymous Coward, 11 Oct 2012 @ 1:01am
        
        Re: Re: Re: Re:
        They've already shown that they're willing to engage the legal system to fight this.
        
        No they haven't.
        
        Give me one case.
        
        One.
        
        Post it right here:
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        Anonymous Coward, 11 Oct 2012 @ 6:05am
        
        Re: Re: Re: Re: Re:
        Jesus fucking Christ!
        
        Are you an idiot who can't read? Every one of those five filed oppositions.
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    - Milton Freewater, 10 Oct 2012 @ 9:36am
      
      Re: Re: Re:
      "If a defendant actually did the infringement, settling makes a lot more sense than litigating and losing."
      
      But if they didn't, litigating makes more sense, which is "probably" why they are litigating. Derp.
      
      More importantly, "not guilty" does not mean you didn't do what they think you did. It means they can't establish that the court should punish you for it.
      
      Essentially, "infringement" as the defendants define it may not exist in the eyes of the law. "Infringers" have an enormous incentive to pursue a court ruling. It's expensive, but justice is expensive, and it's not all that risky.
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    - Keii (profile), 10 Oct 2012 @ 9:37am
      
      Re: Re: Re:
      Are you declaring them guilty until proven innocent?
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      - John Fenderson (profile), 10 Oct 2012 @ 9:54am
        
        Re: Re: Re: Re:
        In AJ's world, apparently, people are never accused of anything they aren't guilty of.
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      - average_joe (profile), 10 Oct 2012 @ 10:53am
        
        Re: Re: Re: Re:
        I'm merely saying that it's likely they are infringers. The legal presumption is that they are not liable for infringement. I don't think the plaintiff will have any trouble overcoming this presumption.
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        Ninja (profile), 10 Oct 2012 @ 11:04am
        
        Re: Re: Re: Re: Re:
        I expect Malibu to present IP addresses as evidence and the few defendants that actually presented how IPs can be spoofed, wireless connections security broken and open wi-fis... used by any1... will put this 'evidence' to shame. Likely are infringers? So you are telling me that the activity is so mainstream to the point you can assume they are infringers? Nice.
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        That Anonymous Coward (profile), 10 Oct 2012 @ 5:20pm
        
        Re: Re: Re: Re: Re: Re:
        Don't forget some of the "experts" used by trolls get paid by the settlement...
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        Franklin G Ryzzo (profile), 10 Oct 2012 @ 11:09am
        
        Re: Re: Re: Re: Re:
        What makes you think it's so likely they are infringers?
        
        Are you also confident that the deceased old man, the network printer, and the grandmother with no computer were all infringers too?
        
        Your track record so far has shown that you will always back the plaintiffs regardless of how weak their case is, so you're comments, however misguided and grounded in denial, come as no surprise.
        
        Average Joe isn't a very good moniker for you... Common Joe would be more accurate.
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        Mr. Applegate, 10 Oct 2012 @ 11:20am
        
        Re: Re: Re: Re: Re:
        "The legal presumption is that they are not liable for infringement. I don't think the plaintiff will have any trouble overcoming this presumption."
        
        Then, why EXACTLY would the plaintiff NEVER choose to go to trial if the Defendant chooses not to pay or respond?
        
        I mean if the Plaintiff's case is that strong, and there is that much money to be made, they most certainly would choose to pursue everyone they could locate. However, it is stated in the article that the plaintiff admits they have no intention of going to trial.
        
        Your logic is seriously askew, at least based on the facts as presented in this article.
        [ link to this | view in chronology ]
        
        average_joe (profile), 10 Oct 2012 @ 11:46am
        
        Re: Re: Re: Re: Re: Re:
        Not going to trial is their business model. I don't think they avoid trial because they'd lose on the merits. They avoid it because it's expensive, difficult, and time-consuming.
        
        The fact that litigation is cost prohibitive isn't the plaintiff's fault. It's the fault of the thousands of defendants who gang up on the one plaintiff. Think of it this way, if thousands and thousands of people were violating your rights, would you have the resources to fight each one in court one-on-one? Of course not.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 10 Oct 2012 @ 12:03pm
        
        Re: Re: Re: Re: Re: Re: Re:
        So you're admitting that the operation isn't about rights violation but, in your own words, a "business model".
        
        Classy.
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        average_joe (profile), 11 Oct 2012 @ 5:32am
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        I'm only speculating that there are so many thousands of defendants violating the plaintiff's rights that the plaintiff doesn't have the resources or ability to actually engage each defendant one-on-one. That doesn't mean it's not about rights violations. It is. There's prima facie evidence that the subscriber of the IP address is an infringer. The settlement offers are being made in good faith.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 10 Oct 2012 @ 12:29pm
        
        Re: Re: Re: Re: Re: Re: Re:
        So why send out thousands of letters to the so called "infringers" in the first place stating that they will be taken to court if they don't settle when the plaintiff has no intentions of taking them to court in the first place because of costs to do so?
        [ link to this | view in chronology ]
        
        average_joe (profile), 11 Oct 2012 @ 5:39am
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        I don't know what the letters say, but there's nothing wrong with saying "settle now, or perhaps face us in court." It's not extortion to threaten a legal course of action.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 11 Oct 2012 @ 6:00am
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re:
        It most certainly is wrong to ask for a settlement or face court when there is absolutely no intention for the sender of sending the receiver to court. This is called taking money from false prentensies. Taking money in a settlement with the pretense of being taking to court if no payment when there is no court action when no payment. Here in the UK there was a copyright troll doing exactly as this company was doing in sending out letters asking for a settlement or face court but never took anyone to court who didn't pay and this company was charged and found guilty. The Judge may well rule in favour of the defendants because the plantiffs cannot show or prove that an IP address is the person who downloaded and its already been shown and proved in court that an IP address does not prove who the downloader was and also its been shown and proved in court that a person cannot be neligent for someone else if there system or wi-fi was used by someone else without knowledge so that argument wont work either.
        [ link to this | view in chronology ]
        
        sophisticatedjanedoe (profile), 11 Oct 2012 @ 6:10am
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re:
        > I don't know what the letters say
        
        So you just admitted that you have been engaging in discussing a topic that you have no clue about. Great.
        [ link to this | view in chronology ]
        
        average_joe (profile), 11 Oct 2012 @ 6:34am
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        Wow, really? I know they say something along the lines of "settle or be sued." There's nothing wrong with offering to settle with someone against whom you have evidence of wrongdoing.
        [ link to this | view in chronology ]
        
        Mr. Applegate, 10 Oct 2012 @ 12:37pm
        
        Re: Re: Re: Re: Re: Re: Re:
        That is VERY warped logic!
        
        First of all if they have no intention of going to trial they shouldn't be petitioning the court in the first place. The court is not a Private Investigator for hire.
        
        Second, if they had a case they could use the winnings from one case to fund the next ten! Given some of the verdicts in similar cases they could probably fund the next 100 or 1000.
        
        I work in a law firm and when you have a whole lot of the same type of case you can become quite efficient in running a case through the court. We routinely do a hundred or more at a time several times a month. And yes, our client does have and will use its resources to fight each and every one in court! Why? They have a case and they know it!
        
        Since when is it OK to try to EXTORT money from anyone. Lest you think it is not extortion here is the legal definition: "The obtaining of property from another induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right."
        [ link to this | view in chronology ]
        
        Anonymous Coward, 11 Oct 2012 @ 1:05am
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        Because it's ducks in a barrel, Einstein.
        
        Just like Google viewed profiting off infringement as ducks in a barrel.
        
        whoops. The wheel turns.
        [ link to this | view in chronology ]
- Anonymous Coward, 10 Oct 2012 @ 9:40am
  
  Re:
  who's side are you on anyway there joe?
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  - average_joe (profile), 10 Oct 2012 @ 11:54am
    
    Re: Re:
    I'm on the side of justice. I want the right holder to be able to go after the people that have wronged him. Defendants shouldn't be able to shirk liability by simply ganging up by the thousands on a blameless victim plaintiff.
    [ link to this | view in chronology ]
    - sophisticatedjanedoe (profile), 10 Oct 2012 @ 12:14pm
      
      Re: Re: Re:
      So please, please tell me how, for example 4:Twenty Media was wronged? The company was created in Seychelles with a sole purpose of purchasing one copyright to a movie of questionable legality � Teen Anal Sluts, a movie that was never released for sale � offline or online, and than suing 1300+ people in a Louisiana court, grossing orders of magnitudes more money in extorted settlements that such move would ever collect if sold. Yes, it is a business model, and it is not drastically different from the one Al Capone had.
      
      Other examples are not this extreme, but still close.
      
      Blameless victim plaintiff? You are a clown in an otherwise tragic play.
      [ link to this | view in chronology ]
      - average_joe (profile), 10 Oct 2012 @ 2:06pm
        
        Re: Re: Re: Re:
        That's got nothing to do with the plaintiff in this case. Are you suggesting that the plaintiff in this case is not a victim who has had his rights violated by many, many people?
        [ link to this | view in chronology ]
        
        sophisticatedjanedoe (profile), 10 Oct 2012 @ 2:23pm
        
        Re: Re: Re: Re: Re:
        Meet the plaintiff in this case.
        
        Also note that Brigham Fields' primary company is X-Art. "Malibu Media" was created with a sole purpose of running this extortion racket, a brainchild of Keith M. Lipscomb, who pays "wronged" party 10% of extortion proceeds for using its copyrights.
        
        And if you want to meet paragons of ethics, attorneys representing Malibu Media, I'll be glad to introduce them. Let's start with Paul Nicoletti. Should I continue?
        [ link to this | view in chronology ]
        
        sophisticatedjanedoe (profile), 10 Oct 2012 @ 2:24pm
        
        Re: Re: Re: Re: Re: Re:
        The first link was lost: http://fightcopyrighttrolls.com/2012/05/27/no-agenda-show-about-copyright-trolling-its-a-complete-ma fioso-operation/
        [ link to this | view in chronology ]
        
        John Fenderson (profile), 10 Oct 2012 @ 4:35pm
        
        Re: Re: Re: Re: Re:
        The plaintiff's behavior certainly suggests that they are not a victim.
        [ link to this | view in chronology ]
        
        Karl (profile), 11 Oct 2012 @ 7:23am
        
        Re: Re: Re: Re: Re: "victims"
        Are you suggesting that the plaintiff in this case is not a victim who has had his rights violated by many, many people?
        
        They are not victims.
        
        Here's how Merriam-Webster defines "victim":
        
        a (1) : one that is injured, destroyed, or sacrificed under any of various conditions [a victim of cancer] (a victim of the auto crash) [a murder victim] (2) : one that is subjected to oppression, hardship, or mistreatment [a frequent victim of political attacks]
        b : one that is tricked or duped [a con man's victim]
        
        Absolutely none of this applies in this case. If anything, it would be a better description for the defendants.
        
        It is especially inappropriate when the "rights" that the plaintiffs have, are exclusively statutory rights (not human rights, natural rights, or innate rights); are granted by the very class of people they are suing (the general public); and exist solely to benefit that class of people. Completely unlike, say, anything in the Bill of Rights.
        
        They are not victims. They are complainants in a civil lawsuit. Even if the allegations were true, it is pure hogwash (or, to borrow your oft-misused phrase, "FUD") to claim that they are victims.
        [ link to this | view in chronology ]
        
        average_joe (profile), 11 Oct 2012 @ 7:45am
        
        Re: Re: Re: Re: Re: Re: "victims"
        Huh? So you think the pirates, who made the conscious decision to violate the property rights of another, are the victims? Sweet. Can I "victimize" your property rights? It'd be your fault that I chose to violate your right! I'm just a victim!
        [ link to this | view in chronology ]
        
        Karl (profile), 11 Oct 2012 @ 3:22pm
        
        Re: Re: Re: Re: Re: Re: Re: "victims"
        Huh? So you think the pirates
        
        They are not "pirates." They are people with an IP address the plaintiffs claim was used for piracy. They could be pirates; their roommates could be pirates; they could have an unsecured IP address; or the plaintiffs could simply be wrong.
        
        Sweet. Can I "victimize" your property rights?
        
        If those "property rights" are purely legal fictions; if they're granted solely for the benefit of you and your buddies; and if that "victimization" results in no harm to me, and leaves me with the same use of the "property" that I had before... Then sure, go for it.
        
        Also, "property rights" can't be "victimized." Only human beings can.
        
        It'd be your fault that I chose to violate your right!
        
        It's not that it would be "my fault." It would be that I'm not a victim. The fact that it's totally your fault doesn't change that.
        
        If that exact same action could result in my benefit, and I choose not to make it benefit me... well, that's certainly my fault. I wouldn't be a victim either way, but in this case, I'd also be stupid.
        
        I'm just a victim!
        
        Look, let's assume for the sake of argument that the people with those IP addresses are actually guilty. Even so, about the worst that could be said of them is that they did something ethically as bad as sneak into a movie theater.
        
        Picture this. You get a registered letter in the mail. It says that someone fitting your description was seen sneaking into a theater a month ago. The people who sent the letter didn't own the theater back then, but all the same, you'd better pay up $3000, or they're going to sue. If you even want to prove your innocence, you'll have to hire an expensive lawyer, take time off of work, and fly to a foreign state for a lengthy trial. And if you lose, you're going to face up to $150,000 in damages, plus lawyer's fees, on top of everything else.
        
        If that happened, then yes, I'd call you a victim. Even if you actually did sneak into that movie theater.
        
        Now, consider what it would be like if you didn't sneak into that theater.
        
        I don't think any human being would consider this situation "justice." Certainly the judge didn't.
        [ link to this | view in chronology ]
        
        Karl (profile), 11 Oct 2012 @ 3:29pm
        
        Re: Re: Re: Re: Re: Re: Re: "victims"
        Can I "victimize" your property rights?
        
        Here's another example. In theory, I have air rights above my property. Every day, dozens of birds violate my property rights.
        
        Am I a "victim" of those birds?
        [ link to this | view in chronology ]
    - The eejit (profile), 10 Oct 2012 @ 12:15pm
      
      Re: Re: Re:
      And if the wrong is imagined? Will you come out and apologise for defaming all those involved?
      [ link to this | view in chronology ]
    - Mr. Applegate, 10 Oct 2012 @ 12:46pm
      
      Re: Re: Re:
      "I'm on the side of justice."
      
      That is laughable, you most certainly are not on the side of justice! You have taken a very one sided view and stubbornly held to it without providing ANY evidence to back up ANY of your claims.
      
      "Defendants shouldn't be able to shirk liability by simply ganging up by the thousands on a blameless victim plaintiff."
      
      And with this statement you show your true colors Mr. Troll.
      
      Exactly, how did the defendants 'gang up' on the plaintiff?
      
      There is no point in continuing this discussion with you as I do try not to feed the trolls.
      [ link to this | view in chronology ]
    - Richard (profile), 10 Oct 2012 @ 1:55pm
      
      Re: Re: Re:
      I'm on the side of justice.
      
      If that were trye you would be appalled by the behaviour of the plaintiff in this and similar cases.
      
      You appear to be condoning extortion.
      [ link to this | view in chronology ]
      - Richard (profile), 10 Oct 2012 @ 1:56pm
        
        Re: Re: Re: Re:
        sorry "trye"="true"
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    - Anonymous Coward, 10 Oct 2012 @ 2:24pm
      
      Re: Re: Re:
      "ganging up by the thousands on a blameless victim plaintiff"
      
      Malibu Media is getting gang-banged?
      [ link to this | view in chronology ]
    - G Thompson (profile), 10 Oct 2012 @ 7:22pm
      
      Re: Re: Re:
      I'm on the side of justice.
      
      Justice for whom? and you might state you are on the side of "justice" but it's quite self evident you are not on the side of equity or procedural fairness.
      
      Defendants shouldn't be able to shirk liability by simply ganging up by the thousands on a blameless victim plaintiff.
      
      WTF! So it's ok for a plaintiff (and calling a plaintiff a 'victim' is the absolute wrongful and unethical wording unless proven which this ISN'T) to use its resources to join many (hundreds and thousands) of defendants without allowing them the opportunity to have there own day in court and instead 'offer' to basically turn a blind eye to 'justice' by accepting a small fee? hmmmm. based on your philosophy and equitable process the defendants should be able to pool there monies into One flat sum of say $3000 all at once and pay it to send the plaintiff on there way. See if they want to join defendants as ONE instance then they should be paid based on only ONE instance
      
      Joe, your arguments just make no sense legal, logical, or otherwise.
      [ link to this | view in chronology ]
- DannyB (profile), 10 Oct 2012 @ 2:46pm
  
  Re:
  Dear Mr. average_troll, I must respectfully disagree.
  
  I think that these five defendants might be ones who specifically would prefer to litigate.
  
  Over on ArsTechnica, I read:
  
  Out of the dozens of John Does sued by Malibu in Eastern Pennsylvania, five have filed objections to Malibu's subpoenas seeking their contact information. One of them filed a declaration specifically denying he had been trading files on BitTorrent. Another raised a number of legal objections to the subpoenas.
  
  Since these five have, by their court filings, expressed an interest in the process, the judge might have picked them out for that reason. The reason being that they have expressed an interest in NOT settling.
  [ link to this | view in chronology ]
  - Anonymous Coward, 11 Oct 2012 @ 1:11am
    
    Re: Re:
    Techdirt definition of 'troll'= Anyone that doesn't champion piracy.
    [ link to this | view in chronology ]
    - DannyB (profile), 11 Oct 2012 @ 5:41am
      
      Re: Re: Re:
      Troll is one who doesn't champion due process.
      [ link to this | view in chronology ]
      - average_joe (profile), 11 Oct 2012 @ 6:10am
        
        Re: Re: Re: Re:
        Troll is one who doesn't champion due process.
        
        Due process is not violated here. You guys love to throw out the "violates due process!" FUD, having learned to do so from your anti-copyright zealot leader, but none of you appear able to run through the analysis.
        
        Pray tell, how is the Due Process Clause being violated here? Please be specific.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 11 Oct 2012 @ 6:57am
        
        Re: Re: Re: Re: Re:
        Uh AC wants the Does to roll over and play dead rather than get their day in court. His position seems to question the legitimacy of the courts involvement in this process.
        [ link to this | view in chronology ]
        
        PT (profile), 11 Oct 2012 @ 10:24am
        
        Re: Re: Re: Re: Re:
        "...your anti-copyright zealot leader..."
        
        LOL, average_joe is losing it. He's been so carefully avoiding trollish ad-hominems up to this point.
        [ link to this | view in chronology ]
- G Thompson (profile), 10 Oct 2012 @ 7:13pm
  
  Re:
  Well of course that is always a problem with these sort of things, though its somewhat telling how you can only state this as the only problem with this action by the judge.
  
  I can likely guarantee that if even one of these Does does not settle the crapfight that will then be undertaken with discovery being ordered against the actual plaintiffs will be quite an interesting experience.
  
  The plaintiffs might then actually under orders have to explain evidentially how there so call reliable and authenticated process of finding out IP numbers in the first place using "secret corporate forensics knowledge" (that the rest of the forensics world proves to be utter bullshit) actually works.
  
  A LOT of interested parties are looking at this case in the legal, forensic, IT, and IP world now, though admittedly in the IP world (yours I believe) the emphasis is on "how the frick can we stop this from happening".
  [ link to this | view in chronology ]
Beta (profile), 10 Oct 2012 @ 8:59am

blood on the sand
"Plaintiff has cried out for justice, and this Court shall oblige. Both sides will enter the arena, where I'm sure Plaintiff will be eager to display the courage and strength of which Plaintiff has boasted. Pity the poor Defendants, they're really in for it. But if on the other hand, Plaintiff turns out to be bluffing, as everyone says and all the evidence indicates, then the Defendants will be in a position to... oh, I don't know... maybe thrash Plaintiff to within an inch of his worthless life by means such as this, and this, and this, and maybe even some of THAT!... How's Tuesday?"
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out_of_the_blue, 10 Oct 2012 @ 9:02am

With you on view, except for spelling:
bellwether - n. 1. a male sheep, usually wearing a bell, that leads the flock 2. a leader, esp. of a sheeplike crowd 3. anything suggesting the general tendency or direction of events, style, etc.

No, this isn't nitpicking. Don't you EVER consult a dictionary or spell-check before using a rare word? You've NO excuse with it available instantly. -- I do frequently! Though to be sure, sometimes I'm generous and intentionally make an error for nitwits to nitpick.
[ link to this | view in chronology ]
- average_joe (profile), 10 Oct 2012 @ 9:05am
  
  Re: With you on view, except for spelling:
  a leader, esp. of a sheeplike crowd
  
  Made me chuckle, since that describes certain zealots perfectly.
  [ link to this | view in chronology ]
  - Cory of PC (profile), 10 Oct 2012 @ 10:11am
    
    Re: Re: With you on view, except for spelling:
    Wow, you noticed?
    [ link to this | view in chronology ]
    - Ninja (profile), 10 Oct 2012 @ 10:58am
      
      Re: Re: Re: With you on view, except for spelling:
      It's easy to spot your own reflection ;)
      [ link to this | view in chronology ]
- Gwiz (profile), 10 Oct 2012 @ 9:22am
  
  Re: With you on view, except for spelling:
  No, this isn't nitpicking. Don't you EVER consult a dictionary or spell-check before using a rare word? You've NO excuse with it available instantly. -- I do frequently! Though to be sure, sometimes I'm generous and intentionally make an error for nitwits to nitpick.
  
  Umm. Yes it is nitpicking. Although what you are nitpicking isn't really clear.
  
  http://definitions.uslegal.com/b/bellwether-case/
  [ link to this | view in chronology ]
- Milton Freewater, 10 Oct 2012 @ 9:25am
  
  Re: With you on view, except for spelling:
  Mike used "bellwether" correctly - the trial will suggest the general tendency or direction of subsequent legal events.
  
  "No, this isn't nitpicking."
  
  What is your point exactly?
  [ link to this | view in chronology ]
- Anonymous Coward, 10 Oct 2012 @ 9:29am
  
  Re: With you on view, except for spelling:
  bellwether is the term the judge used: Meaning one, or small group(a sheep) setting a precedent(guiding) for the rest(a flock).
  
  maybe you should consult a LAW dictionary instead of your websters
  
  http://definitions.uslegal.com/b/bellwether-case/
  [ link to this | view in chronology ]
- Rikuo (profile), 10 Oct 2012 @ 9:30am
  
  Re: With you on view, except for spelling:
  What's your point? The kind, mature thing to do would be to simply label your comment "Correction", point out the spelling/grammatical error and move on, without having to insult the author.
  But of course, I expect far too much from the likes of you. You truly live up to your name, hasn't_got_a_clue. (That is your new name by the way, it describes you perfectly).
  [ link to this | view in chronology ]
- Anonymous Coward, 10 Oct 2012 @ 9:36am
  
  Re: With you on view, except for spelling:
  Just declaring something is not nitpicking does not make it so.
  [ link to this | view in chronology ]
- New Mexico Mark, 10 Oct 2012 @ 9:38am
  
  Re: With you on view, except for spelling:
  "the court notes that" and the italics should have been a broad clue that this we just a quote. I guess Mike could have added [sic] after the offending word, but to correct your assertion, that most certainly was nitpicking.
  [ link to this | view in chronology ]
  - Anonymous Coward, 10 Oct 2012 @ 9:50am
    
    Re: Re: With you on view, except for spelling:
    I seriously think this fool comments here to look like a clueless idiot. I do believe it makes him feel better about himself. As yo why, I have no idea.
    
    Maybe he has absolutely no self esteem and looking like a "tard"- my apologies to all the "tards" out there as associating you with him puts you in a bad light-is what he needs to attain the chubby he wants so he can fap to the comments telling him how utterly clueless his ass is.
    
    I just don't know.
    [ link to this | view in chronology ]
- Anonymous Coward, 10 Oct 2012 @ 9:44am
  
  Re: With you on view, except for spelling:
  Trolling on something you obviously know NOTHING just makes you look stupid.
  [ link to this | view in chronology ]
- Cory of PC (profile), 10 Oct 2012 @ 10:21am
  
  Re: With you on view, except for spelling:
  Um, you should know that with today's speech, it's guaranteed that you'll find hardly anyone using words by their original definition. There are many ways one word can be used for a different meaning, and some of these ways are picked up by the public and becomes a more popular use. Just because you're complaining about someone using a word from its original definition doesn't mean that the definition s/he's using is wrong. There's more to everything than just one source of information.
  
  Hey, I prefer to use words by their original definition since I loathe slang, but I'm not going to waste all my time studying every single word in existence learning the original definitions. If anything... you're just stupid.
  [ link to this | view in chronology ]
  - sophisticatedjanedoe (profile), 10 Oct 2012 @ 10:29am
    
    Re: Re: With you on view, except for spelling:
    Hey, what a fine intercourse you are having here!
    [ link to this | view in chronology ]
  - Gwiz (profile), 10 Oct 2012 @ 10:32am
    
    Re: Re: With you on view, except for spelling:
    I prefer to use words by their original definition since I loathe slang...
    
    What'chu talkin' 'bout, Willis?
    [ link to this | view in chronology ]
- Mr. Applegate, 10 Oct 2012 @ 11:36am
  
  Re: With you on view, except for spelling:
  Great, you can use a dictionary. Now look it up in a law dictionary.
  
  bell�weth�er (blwthr)
  n.
  One that serves as a leader or as a leading indicator of future trends
  
  or perhaps:
  
  Bellwether Case Law & Legal Definition
  
  By definition Bellwether is an indicator of future trends. Courts utilize a bellwether approach when large numbers of plaintiffs are proceeding on the same theory or claim and there is no other feasible way for the courts to handle the enormous caseload. This approach has been used in many cases including asbestos litigation. A group of plaintiffs are chosen to represent all the plaintiffs. The issues for trial should concern common claims or theories among all the plaintiffs. These representative cases go for trial and the results act as the bellwether for the other plaintiffs� trials. The verdict from this grouping is extrapolated to the remaining plaintiffs� cases. The actual results may be utilized for valuing groups of claims in settlements. The plaintiffs can also choose to continue with their own individual trial.
  
  Not that I am picking nits, but to further your information a little more bellwether is a term that is also used in the financial sector as well, it is not an uncommon term.
  [ link to this | view in chronology ]
- Anonymous Coward, 10 Oct 2012 @ 3:44pm
  
  Re: With you on view, except for spelling:
  That's so weird! How did you manage to read a dictionary when you can't read the article? The term "bellwether case" was introduced by the court, not somebody on Techdirt.
  
  BTW, you might want to try a legal dictionary when legal terms are involved. You'll embarrass yourself less.
  [ link to this | view in chronology ]
Baldaur Regis (profile), 10 Oct 2012 @ 9:20am

It seems the central assertion in all copyright infringement cases is:
IP address = actual human = actual infringer
Can't wait to see this assertion actually tested.
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- Machin Shin (profile), 10 Oct 2012 @ 10:03am
  
  Re:
  That does seem to be the argument and I find it pretty funny. At my house I have 5 desktops that are always on the network and at least 10 laptops that come and go. All these have 1 public IP address.
  
  So IP address does not tell you much about who actually did the infringing.
  [ link to this | view in chronology ]
KingofDarkness (profile), 10 Oct 2012 @ 9:29am

Finally...
I hope this is the beginning of some aggressive precedent setting...

Mike, please keep us updated on this, I am extremely interested in the ongoing case and the outcome.
[ link to this | view in chronology ]
sophisticatedjanedoe (profile), 10 Oct 2012 @ 9:42am

There is an interesting observation from one of the commenters on my blog: he noticed that our community is rather excited about the prospect of a fair trial. Too much for a bunch of thieves and pirate apologists as trolls try to portray us!
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- Ninja (profile), 10 Oct 2012 @ 11:11am
  
  Re:
  Facts are not our beloved trolls forte ;)
  [ link to this | view in chronology ]
- Anonymous Coward, 11 Oct 2012 @ 1:14am
  
  Re:
  I love sock puppets.
  [ link to this | view in chronology ]
  - That Anonymous Coward (profile), 11 Oct 2012 @ 12:33pm
    
    Re: Re:
    Oh Johnny boy your the only one using sock puppets, pretending to be someone your not... sober and a good lawyer.
    
    How sad is it for you that 3 anonymous people online managed to do so much damage to your extortion mill?
    [ link to this | view in chronology ]
dave blevins (profile), 10 Oct 2012 @ 11:04am

... where's the sincerity of the accuser?
Mr. Judge should have made MM post a [very large] bond to proceed since it is obvious MM will loose. such bond should be forfeited to defendants .
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Joe Dirt, 10 Oct 2012 @ 11:23am

From the Horse's Mouth
Only one thing is impossible for God: to find any sense in any copyright law on the planet.
- Mark Twain's Notebook, 1902-1903
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Joe Dirt, 10 Oct 2012 @ 11:23am

From the Horse's Mouth
Only one thing is impossible for God: to find any sense in any copyright law on the planet.
- Mark Twain's Notebook, 1902-1903
[ link to this | view in chronology ]
- Anonymous Coward, 11 Oct 2012 @ 1:15am
  
  Re: From the Horse's Mouth
  You should provide a cite, no?
  [ link to this | view in chronology ]
Digitari, 10 Oct 2012 @ 1:28pm

Re:
"Never attribute to malice that which is adequately explained by stupidity" Robert J. Hanlon
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sophisticatedjanedoe (profile), 10 Oct 2012 @ 2:40pm

Morgan Pietz brings good news:

On October 10, 2012, United States District Judge R. Gary Klausner issued a Minute Order denying Malibu Media�s Renewed Motion for Early Discovery in all Malibu Media cases assigned to him in the Central District of California. What that means is that 33 of Malibu Media�s cases have bitten the dust, at least as to all Does other than Doe No. 1.
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That Anonymous Coward (profile), 10 Oct 2012 @ 5:30pm

I think this will be fun.
Joe would have you think the Does should be terrified of discovery, he missed the idea that all of the IP gathering is done by a firm using a "super secret" technology that has NEVER been vetted in a court of law as being accurate.
It has never been peer reviewed, or had experts outside the company look at how it works.

If the program used to gather IP's has a flaw, you do understand that every troll case sinks right?
You understand if it comes out that the firm gathering the IPs was seeding the file, that unclean hands comes to town.
One can not create an event to then profit from.
You understand that the courts are unaware that the gathering firms are not paid a flat fee for their work, but a percentage of each settlement giving them a reason to make sure they get more settlements.

There are lots of "questionable" things in the trolls playbook that if more Judges were aware of they would throw them out.
I think there should be criminal penalties for those trolls who falsified copyright registrations, or began copyright lawsuits for movies with no valid copyright.

Maybe when these 5 are done, all of the dirt will be out there.

In the meantime I think this case will make very strange bedfellows among the different troll groups. They all sink based on this case...
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- Anonymous Coward, 11 Oct 2012 @ 1:17am
  
  Re:
  Well, then the defendants have nothing to worry about, right?
  
  Oh yay! Happy days are here yet again!
  [ link to this | view in chronology ]
  - PT (profile), 11 Oct 2012 @ 11:02am
    
    Re: Re:
    "Well, then the defendants have nothing to worry about, right?"
    
    It took a while, but I perceive it's finally dawning on you what the Judge has been trying to point out.
    [ link to this | view in chronology ]
  - That Anonymous Coward (profile), 11 Oct 2012 @ 12:31pm
    
    Re: Re:
    Other than having damaging allegations against them made public doing irreparable harm to their reputation.
    
    Everyone remembers when someone is an accused child molester, no one remembers the charges being dropped.
    
    Since you posted as an AC and are trying to taunt me I will play the odds and suggest that you go sober up Johnny boy. You think you covered your tracks on twitter by removing the account, but we still have all of your posts.
    How is running from the FL bar working out for you and your former minions?
    Do you think you will do better in NV?
    [ link to this | view in chronology ]
Anonymous Coward, 11 Oct 2012 @ 12:35am

EFF?
..Sure hoping the EFF shows up with a can of whoop ass!
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- Anonymous Coward, 11 Oct 2012 @ 1:18am
  
  Re: EFF?
  Sorry, but Google's lawyers aren't gonna touch this one.
  [ link to this | view in chronology ]
  - Anonymous Coward, 11 Oct 2012 @ 5:02am
    
    Re: Re: EFF?
    Hey AC, I got proof Google is behind it all, with a masterplan pulling strings in the shadows to dispossess all US copyright-holders. It also shows EFF and all public defense bodies are just umbrella puppets set up only to ensure Google's world domination.
    
    Nah, kidding.
    [ link to this | view in chronology ]
sophisticatedjanedoe (profile), 12 Oct 2012 @ 10:29am

Malibu Media v. Fantalis
Update on Fantalis case from Colorado (same troll — Malibu Media):

Copyright trolls: �We don�t care if you did it or not, we just want your money!�
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sophisticatedjanedoe (profile), 18 Oct 2012 @ 7:44am

Update
Bellwether trial update: trolls are trying to sabotage the process
[ link to this | view in chronology ]
Tim, 19 Oct 2012 @ 1:39am

Subpena
I fought the subpena for my isp (comcast) to not give my name, but they gave it out even before my case went before a judge! I am now going to sue Comcast and the lawer representing malibu Media for wasting the courts' time and violating the subpena process.
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