Massive Copyright Troll Malibu Media/xArt Defies Court Order To Publicly Name Defendant

from the not-a-good-move dept

Tue, Mar 17th 2015 1:45pm — Mike Masnick

We've talked a lot about massive copyright trolling operation, Malibu Media (which is also known for providing porn under the name xArt). In some other cases, it's been revealed that Malibu Media is one of many operations that appear to be little more than a copyright delivery system for a series of German companies that are behind the scenes of almost every major copyright trolling operation these days. The company is also somewhat infamous for its shady practices and the way in which it files many questionable lawsuits -- including the use of "Exhibit C" -- totally unrelated films that it claims the accused also downloaded illegally, but over which Malibu Media has no copyright claims. That exhibit clearly served only to try to pressure individuals into settling, so there wouldn't be a public court document insinuating a list of embarrassing films had been downloaded.

Its latest move seems to go seriously over the line in yet another effort to try to force defendants to pay up and settle. In this case, involving a "John Doe" defendant, the court had been clear that any documents involving the name of the defendant needed to be filed under seal. That came after the court had rejected the defendant's attempt to have the whole subpoena thrown out, but was clearly on to Malibu Media's usual tricks pressuring people into settling. As summarized in a new filing from Booth Sweet (the lawyers for the defendant), the court had been abundantly clear that Malibu Media was not to publicly name the defendant:

Here, the Order was sent by the Court to the Plaintiff. The Court's language could not have been more clear.
“If the summons and its return disclose the Defenan[d]t’s name and identifying information, Defendant shall file the same under seal.”
[....]

Nor was the intent of the Court’s Order lost upon the Plaintiff. In its motion to file its summons and return of service, Plaintiff specifically noted:
“To comply with the Court’s Protective Order [CM/ECF 20], Plaintiff seeks leave of Court to file its proposed summons and affidavit of service under seal.”
[....]

In approving the Plaintiff’s request to file its summons and return of service under seal, the Court once again took pains to establish
the following procedure to balance Defendant's privacy interests with the presumption of open judicial proceedings. Simultaneously with filing its proposed summons under seal, Plaintiff shall also file a Reference List and an amended complaint. The Reference List, which shall be filed under seal, must contain Defendant's name and any other identifying information that Plaintiff deems necessary to the prosecution of its case, as well as an appropriate identifier that uniquely corresponds to each item listed. See Fed. R. Civ. P. 5.2(g). The amended complaint and all subsequent filings shall be publicly filed and must refer to Defendant only as John Doe and use the identifier provided in the Reference List for other identifying information....

So what do you think happened? Well, first, as has happened in many other Malibu Media cases, the company and its trolling lawyers failed to serve the defendant, so Booth Sweet filed for a motion to dismiss. In response... Malibu Media filed another filing (a "summons and reference list") that was not redacted and not under seal. And did so at a time that made it difficult to fix in a timely manner:

On March 13, 2015, Plaintiff, in violation of the Court’s repeated Orders, filed an unredacted summons and reference list with John Doe’s name and address plainly visible. See Docs. 24 & 25. By choosing to file these documents at 8:00 PM on a Friday evening, Plaintiff intentionally chose a time when it would be difficult to correct, and the embarrassment alone might cause John Doe to seek a non-trial disposition just to end the matter. More so, the documents are dated March 12, 2015, further compounding the inference that Plaintiff intentionally waited until Friday evening to file them.

Furthermore, Booth Sweet notes that Malibu Media pulled this same damn trick in multiple other cases as well, including another one done late on a Friday evening:

Malibu Media v. John Does 1-14, No. 12-cv-0764-BAH, ECF No. 35 (D.D.C. 2012)

Plaintiff filed an un-redacted first amended complaint and summons, both identifying the John Doe there by name, in express contravention of the Court’s protective order. Before a sanctions motion was filed, the matter was dismissed due to Plaintiff’s failure to timely serve the complaint.

Malibu Media v. John Does 1-14, No. 12-cv-2084, ECF #37 (E.D. Pa. Nov. 1, 2012)

Plaintiff filed un-redacted notices “in the other cases affected by the October 3 Order, naming all the Doe defendants” on a Friday evening. Id. at n.1. Malibu Media v. John Does 1- 14, No. 12-cv-263, ECF #48 (N.D. Ind. Dec. 14, 2012) Plaintiff’s motion to strike un-redacted complaint it filed in violation of court order, blaming error on paralegal.

In fact, Booth Sweet notes that not only does the unredacted filing late on a Friday seem questionable, the entire filing is questionable as it is entirely inappropriate here:

Plaintiff’s deadline to serve the Defendant was February 28. To date, no extension to effectuate service has been granted—which begs the question why these documents were even filed in the first place. These documents are neither necessary at this point in the litigation nor relevant to opposing Defendant’s pending motion to dismiss. However, they are essential to a Plaintiff, who unable to obtain a quick settlement, is all to happy to act out of spite.

It really is incredible how frequently we see this kind of gamesmanship in copyright trolling cases. I guess when you look on the federal judicial system as a system worth gaming for extortionate payouts from individuals, it shouldn't be that surprising that the lawyers would also look to game other aspects of the system as well.

The judge in the case, Judge Timothy Black, has wasted little time in ordering Malibu Media's lawyer, Yousef Faroniya, to explain why he shouldn't be sanctioned for clearly disobeying the court's orders:

Defendant moves the Court to order Plaintiff and its counsel to show cause why they should not be sanctioned or held in contempt for publicly filing Defendant's name and address in contravention of two Court orders directing Plaintiff to file this information under seal. For the reasons set forth in Defendant's motion, the Court finds that Defendant has established a prima facie case that Plaintiff and its counsel "violated a definite and specific order of the court requiring him to perform or refrain from performing a particular act or acts with knowledge of the court's order." ... Accordingly, Plaintiff and its attorney Yousef Faroniya are ORDERED to show cause in writing by March 20, 2015 at 5:00 p.m. why they should not be sanctioned or held in contempt for publicly filing Defendant's name and address in violation of the Court's Orders dated January 21, 2015 and February 26, 2015. Defendant may file a response by March 24, 2015 at 5:00 p.m. The Court will set this matter for a hearing, if appropriate, after receipt of the written responses. The Clerk is DIRECTED to withhold issuance of the summons until this matter is resolved.

And, in a footnote, the judge makes it clear that Faroniya "shall specifically address Defendant's allegation that substantially similar conduct has occurred in other cases involving Plaintiff."

Given how frequently we see this kind of gamesmanship, it's still somewhat amazing that Malibu Media and its lawyers haven't yet collapsed into a Prenda- or Righthaven-style mess.

Gov Uscourts Ohsd 172161 26 0 (PDF)Gov Uscourts Ohsd 172161 26 0 (Text)

Gov Uscourts Ohsd 172161 27 0 (PDF)Gov Uscourts Ohsd 172161 27 0 (Text)

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Filed Under: anonymous, copyright troll, timothy black, under seal, yousef faroniya
Companies: malibu media, xart

27 Comments

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Ninja (profile), 17 Mar 2015 @ 11:53am

Given how frequently we see this kind of gamesmanship, it's still somewhat amazing that Malibu Media and its lawyers haven't yet collapsed into a Prenda- or Righthaven-style mess.

Just grab your popcorn. Next chapter seems to be about to begin.
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That One Guy (profile), 17 Mar 2015 @ 11:53am

Don't have to be a seer to predict this one
They'll ignore the judge, or throw out some laughable excuse, expecting that the judge is too spineless to do anything about it. They've gotten away with it in previous cases after all, what would make them think the same won't hold true here? As soon as you mutter the magic phrase 'copyright', you can pretty much do anything you want in court, up to and including ignoring spineless judges and their orders.

If judges actually cared to stop this sort of activities, then they wouldn't be asking the companies why they believe they shouldn't face potential sanctions or contempt of court charges, they'd be issuing the sanctions and contempt of court charges.
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- Anonymous Coward, 17 Mar 2015 @ 2:01pm
  
  Re: Don't have to be a seer to predict this one
  If judges actually cared to stop this sort of activities, then they wouldn't be asking the companies why they believe they shouldn't face potential sanctions or contempt of court charges, they'd be issuing the sanctions and contempt of court charges.
  
  That would be the judges doing what the content industry wants permission to do, and the trolls often do, totally ignore due process.
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  - That One Guy (profile), 17 Mar 2015 @ 2:54pm
    
    Re: Re: Don't have to be a seer to predict this one
    How so? The judge clearly and without room for interpretation told them 'Do not do X'. They did X anyway. If anyone else did that, they'd have been slapped down with sanctions and/or contempt of court charges on the spot, with the opportunity to perhaps argue after they had been sanctioned/held in contempt why they didn't deserve it, but I rather doubt any non-lawyer would be receiving anywhere near as 'polite' a letter as they got for similar actions.
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    - Anonymous Coward, 17 Mar 2015 @ 6:33pm
      
      Re: Re: Re: Don't have to be a seer to predict this one
      There are steps to be followed, even if the contempt of court is as clear as here. And the first step is make sure that the who did this has a chance to explain why they they ignored 1 or more court orders. Else the sanction will be successfully appealed by the target who can walk in a the appeal claim they have a good reason to ignore the order(s) but the judge was so prejudiced against them that he never bothered to listen to their explanation, and the beauty is that they do not have to give their explanation during the appeal process. End result, procedural mistake by the judge, judge slapped down, target of sanctions gets away (for a while at least) with ignoring the original court order.
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      - That One Guy (profile), 17 Mar 2015 @ 8:11pm
        
        Re: Re: Re: Re: Don't have to be a seer to predict this one
        True enough I suppose, it just seriously angers me when scum like this can basically get away completely with actions that would see anyone else tossed in a cell or facing some other serious penalty for, and all because they are running their extortion scheme under the umbrella of 'copyright protection', which magically turns all illegal or questionable actions into perfectly acceptable ones when they get in front of a judge.
        
        Hopefully this time at least the judge will be able to hit them with something that'll hurt, and they won't be able to just walk away from it without a scratch, moving on to their next target.
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  - Anonymous Coward, 17 Mar 2015 @ 3:21pm
    
    Re: Re: Don't have to be a seer to predict this one
    Yup... what the judge here has been doing from day one is saying "I know who you are and what you're up to, so watch your step."
    
    They mis-stepped, and now the judge has said "Let's follow due process here. Can you come up with any reasonable explanation why you shouldn't have your hand slapped for this behaviour? By the way, I'm looking into your past behaviour now too."
    
    This serves to give Malibu enough slack to mis-step again, either by coming up with some transparent excuse, or by failing to reply. At that point, the judge has dotted his I's and crossed his T's, and can do such things as issue sanctions against the lawyer and start a discovery process against Malibu, to figure out who's really behind the curtain. It's a chess match, and this judge has shown he's willing to play right through the end game.
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- alternatives(), 17 Mar 2015 @ 8:38pm
  
  Re: Don't have to be a seer to predict this one
  expecting that the judge is too spineless
  
  That has been my experience watching the Court system and judges.
  
  Gutless cowards.
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Mason Wheeler (profile), 17 Mar 2015 @ 2:16pm

Error in headline?
Given the context, shouldn't the headline say:

Massive Copyright Troll Malibu Media/xArt Defies Court Order To Not Publicly Name Defendant
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- Anonymous Coward, 17 Mar 2015 @ 8:43pm
  
  Re: Error in headline?
  It is worded confusingly and I am not super grammar sensitive:
  Massive Copyright Troll Malibu Media/xArt Defies Court Order To Publicly Name Defendant.
  It does make some sense.. Malibu released the information publicly, to do this they defied a court order.
  Malibu defied a court order (in order) to publicly ..
  Malibu defied a court order and publicly
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- sophisticatedjanedoe (profile), 18 Mar 2015 @ 7:32am
  
  Re: Error in headline?
  Also: XArt apparently became hexadecimal :)
  
  (On a serious note, I'm please that the real plaintiff — not "Malibu Media" shell — is mentioned in a headline: Malibu Media was created with the purpose to shield the studio from bad publicity.)
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sophisticatedjanedoe (profile), 17 Mar 2015 @ 2:18pm
Don't miss the other two significant events in this case I wrote about yesterday:
- the judge’s order denying the defendant’s motion to quash, and striking parts of the plaintiff’s complaint as a veiled "Exhibit C";
- the defense’s motion to dismiss for failure to timely serve listing 7 cases where deadline to serve passed.
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Anonymous Coward, 17 Mar 2015 @ 2:33pm

Plese post a follow-up if you can
I'd love to hear what these dickheads will have to say for themselves.
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Anonymous Coward, 17 Mar 2015 @ 2:58pm

It's astounding to see how the defense is more and more often held to a higher level of standards than the prosecution. Even worse, often times in these types of cases the defense has to dot their i's and cross their t's precisely the right way while the prosecution disrespectfully treats the court like a joke.
Not following the rules, ignoring the court, breaking the law all in an attempt to squeeze some money out of someone.
And yet these cases aren't simply thrown out and even worse, when action IS taken against the offending (prosecution) party, it's similarly ignored, weaseled out of or the company just simply vanishes because it was never a US company to begin with.
And yet one slip from the defendant and their life is ruined.

Tell me again about the scales of justice?
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- Anonymous Coward, 17 Mar 2015 @ 3:28pm
  
  Re:
  From the looks of things, this judge agrees with you. I recommend grabbing some popcorn, as we may see something else happen this time.
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retrogamer (profile), 17 Mar 2015 @ 3:43pm

About OH's SD...
One thing I would like to mention, as a resident of Southern Ohio, I'm not sure that Malibu were wise to target this part of the state. We're a bit more culturally conservative than northern Ohio, and not as inclined to give pornographers the benefit of the doubt. Larry Flynt is just one example: http://en.wikipedia.org/wiki/Larry_Flynt#Legal_battles I wouldn't be too surprised if Malibu run into more resistance as this drags on. I feel bad for anyone innocently targeted, but I'm almost glad, because they may be digging themselves a pretty deep hole if they don't cut and run now by going after the wrong district. I wouldn't be surprised at all if one of our judges actually tries to uncover the truth a la Judge Wright in California.

That's a long way of saying, I expect popcorn sales in Cincinnati to go up exponentially.
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- That One Guy (profile), 17 Mar 2015 @ 4:01pm
  
  Re: About OH's SD...
  Actually I imagine they took that into account in going after their target. If they know that someone being accused of perusing porn is likely to face harsh social consequences for it in a given area, then that means their target is much more likely to settle quick, in order to avoid that possible public naming. And if they have a reputation for 'accidentally' letting slip names if people fight back, that's going to mean even more pressure to just settle and keep things quiet.
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  - retrogamer (profile), 17 Mar 2015 @ 4:09pm
    
    Re: Re: About OH's SD...
    I think you're right about that, but that only works in their favor IF they don't tick off any of our judges, which it looks like they just did. It'll be interesting to see how it plays out.
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    - That Anonymous Coward (profile), 18 Mar 2015 @ 1:52am
      
      Re: Re: Re: About OH's SD...
      I'd just like to point out that one of their local lawyers called a judge an asshole in his courtroom, she is still filing cases for them. Many judges seem to have boundless patience for these antics from the lawyers, and very little for the targets... afterall the lawyer said they stole porn they have to be bad people... otherwise they wouldn't bring a lawsuit against them.
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      - retrogamer (profile), 18 Mar 2015 @ 6:37am
        
        Re: Re: Re: Re: About OH's SD...
        You're right, and maybe I'm getting my hopes up too much, but Judge Black has a pretty good track record on holding attorneys accountable. What I was trying to get across is that you shouldn't read too much into denying that motion to quash. If Malibu keep testing him, he just might be the first judge to go Judge Wright on them.
        
        I'm not sure if people are aware of this, but he was willing to go against the grain to the extent that there were calls for his impeachment over recognizing same sex marriage.
        http://www.cleveland.com/open/index.ssf/2014/04/ohio_rep_john_becker_repeats_c.html He's definitely a principled man and not beholden to the ABA, I really hope he proves me right here.
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        That Anonymous Coward (profile), 19 Mar 2015 @ 4:13am
        
        Re: Re: Re: Re: Re: About OH's SD...
        I live in hope, but I am also a realist.
        
        I've been following copyright trolls since the first proto-troll days. I laughed at the Hurt Locker cases, knew they would do porn next.
        
        Giggled hysterically as Evan Stone went up in flames, and felt much anger that no one ever mentioned him admitting in a media interview he was participating in the swarms assisting in the spread of the content he would threaten to sue over.
        
        ACS Law in the UK had a server glitch, and the emails really shed some light on how shady this entire industry is... and yet they are allowed to proceed with nothing more than we say so as evidence.
        
        I saw Steele|Hanslalalmabob & wonder boy Gibbs admit in court that they mislead the court in their original filing and the court needed to let them get MORE evidence to prove their case with wildly broad subpoenas.
        
        I watched a Federal Judge ignore due process, the rule of law, and exceed her authority. Then had to wait for the Appeals court to FINALLY set it right, but the damage had already been done to the Does who were railroaded by the court who bent to assist "copyright holders".
        
        I've been sued for defamation for my opinions, yet an officer of the court can file a document calling me a psychopath & other "nice" things on the record in a case to justify trying to hide their antics from public view.
        
        There are so many problems with this and the courts are loathe to do anything until it is much to late for many. Given the amount of cash 1 firm got in a part of a year for 1 film that was well in excess of the maximum $150K, perhaps it is time for the law to close this loophole.
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  - John Fenderson (profile), 18 Mar 2015 @ 7:56am
    
    Re: Re: About OH's SD...
    I find it sad and frightening that the fact that Malibu Media makes porn could factor into the case at all.
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    - retrogamer (profile), 18 Mar 2015 @ 8:32am
      
      Re: Re: Re: About OH's SD...
      I get why you say that, but you're overlooking two things: The issue of whether obscene material is copyright-able in the first place, and the issue of exhibit C. That exhibit C only applies to pornography; Voltage Pictures can't add on a bunch of extra Steven Segal movies to pressure you in the same way that Malibu can with the most objectionable pornography. That's why Malibu are (IMHO) the worst of the worst.
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      - That Anonymous Coward (profile), 19 Mar 2015 @ 3:58am
        
        Re: Re: Re: Re: About OH's SD...
        As exhibit C in the past included titles that suggested incest, underage, and bestiality titles...
        Remember it is just a list of other things they are allegedly infringing upon, some of which might match up with hobbies and interests they post on Facebook.
        
        Being able to claim a long list of "hits" on 3000 titles makes it appear the target is guilty, then add THEY LIKE FOOD!, there was a martha stewart cooking school episode.
        THEY LIKE WATER!, there was an episode of Flipper does Dallas.
        
        How many 1 second (or less) hits, can one pile onto the record to get to 51% probable? Which such crack evidence as they liked a page on facebook about cats and this video pussy raiders of romania OBVIOUSLY proves it was them.
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That Anonymous Coward (profile), 17 Mar 2015 @ 6:08pm

color me so shocked /deadpan

The "punishment" for these itty bitty little lapses amount to nothing. They still threaten Exhibit C, they just don't file it with the case. They claim it shows all sorts of things, but it is meaningless to the case.

Conjecture and guesses keep these cases alive.
The rules are only for the little people when they get found to be in default, no questions about service even when they can't be bothered to name & serve a defendant in under 5 extensions.

Got a shitty film, want to still make lots of money?
Partner with our name changing firms & experts... it will magically be online and monitored for - before it is ever released. Money will come pouring in, trust us.
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Anonymous, 19 Mar 2015 @ 3:58am

I think it is common practice for the trolls. Part of their scare tatics. They did it in the Bellwether trial also.
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sophisticatedjanedoe (profile), 20 Mar 2015 @ 2:36pm

Update (copied from my post):

Young Yousef replied to the order to show cause. Of course he said it was a mistake.

The following day, Friday, March 13, 2015, was my birthday. I was distracted and in a hurry and filed the documents erroneously.

(While I say "he," the text is most like written in Miami: I don't believe the Troll Center would let an inexperienced stooge handle such a serious situation unsupervised.)

Beside attacking Jason Sweet ("Defense counsel is a well-known anti-copyright lawyer" — this is funny!), our drama queen claims that it was him who notified the clerk. I would take it with a grain of salt given the way how he described a similar "mistake" in the Bellwether case:

Once Plaintiff and its counsel were made aware of the mistake, the clerk was immediately contacted and the problem was resolved

I know the circumstances of that event: it wasn't plaintiff's counsel who contacted the clerk.

While I don't claim that the defendant's name exposure was a deliberate action and not a blooper, the results of the poll above are telling: even given that the sample is admittedly biased, it's obvious that there is zero trust in what copyright extortionists say. And plenty of disgust of what they do.
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