Judge Curious If Malibu Media Is Seeding Its Own Files And Engaged In Copyright Misuse
from the questions-to-ponder dept
It appears that a judge has begun to get a little more curious about copyright troll giant Malibu Media and how it goes about finding "infringers" to shakedown with settlement agreements. In the past, evidence showed that other similar copyright trolls like Prenda, were engaged in seeding their own content, which would make the file authorized, and thus the shakedown letters a form of "copyright misuse." There have long been rumors that Malibu Media, perhaps in association with the infamous "international men of mystery" running the behind-the-scenes operation out of Germany, may be seeding their own files as well.Now, as Raul points out, it appears that at least one judge is willing to allow discovery on this point in one of the cases, involving Malibu Media against Matt Guastaferro in a Virginia court, and to examine if Malibu Media has "unclean hands" as a result of this:
In this case, Defendant has alleged that Plaintiff's claims are barred by the [unclean hands] doctrine "as Plaintiff's use of its copyrights violates public policy." ... Such an allegation does not appear to trigger the doctrine because it says nothing of how Malibu Media "encouraged, invited, aided, compounded, or fraudulently induced" Defendant's allegedly wrongful conduct.... Defendant's response to this motion, however, sets forth factual averments that do appear to support his invocation of the doctrine. For instance, he assets that "IPP or another agent of Malibu Media is responsible for initially seeding some of Malibu's content onto BitTorrent in the first place and for facilitating infringing downloads by BitTorrent users" in an attempt "to extract exorbitant sums from individuals for alleged copyright infringement."...This may not lead to anything, but it's fairly amazing that courts haven't been digging that deeply into Malibu Media's practices in similar cases.
Malibu Media has moved to strike this defense on the basis that he has "not sufficiently alleged copyright misuse." ... In support thereof, he relies upon a recent decision of this Court, in which it granted Malibu Media's motion to strike "because Plaintiff cannot have unclean hands if Defendant did not sufficiently plead copyright misuse." .... The Court respectfully disagrees with this conclusion and considers the defense one that is better suited for resolution following discovery. Indeed, the Fourth Circuit did not premise its decision barring the copyright infringement claim pursuant to the doctrine of unclean hands on an associated defense of copyright misuse.... Thus, the pleading requirement that Plaintiff urges here does not appear to exist.
Accordingly, because Plaintiff is on notice of Defendant's allegations that it "seeded" some of its content onto BitTorrent for the purpose of extracting settlements in the numerous copyright infringement suits that it has filed, the Court will decline to strike this defense as well.
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Filed Under: copyright misuse, copyright troll, matt guastaferro, seeding, unclean hands
Companies: malibu media, xart
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"Would you look at the time..."
If they are guilty of what they're being accused of, they absolutely cannot have that come out in court where it can and will be brought up in future cases, so odds are good they are going to run as fast as they can write the letter dropping the case.
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Re: "Would you look at the time..."
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Courts don't dig; that's Guastaferro's lawyer's job. Johnson v. U.S., 780 F.2d 902, 910 (11th Cir. 1986). If Guastaferro can't afford to have his lawyer do the digging, this will not lead to anything.
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Of course the lawyer pursuing that case was a bumbling fool who filed without having the copyrights, participated in the swarms of the gay porn he was demanding settlements for, and showed up at an adult industry convention in devil horns to play up how bad ass he was.
Some guy with a Guy Fawkes avatar made his life unbearable & helped chase him out of porn... well that and the sanctions for him lying to a Judges face in court.
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Each of 244 Does received a demand letter, and each letter listed the actual title a victim tried to download. As you may see, >10% were wrongly targeted.
The most disgusting is that the troll was aware, but it didn't stop this piece of shit from robbing laypeople.
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Some tried to leverage the, well you tried to violate someones copyright so pay us because we showed up.
Emule was/is a terrifying place because of this, you could title a download "Snowden Leaks" and load up the archive with CP and he downloader wouldn't know until the file completed.
Currently one can click magnet links posted, that do not have to reveal the contents until the transfer has already begun, and given the "Germans" 1 second hits someone who was mislead about a torrent could click stop as soon as they saw it wasn't a PD download yet still have a single recorded hit. Have their life turned over because of the claims that everyone who uses BT is a pirate out to "steal" billions of dollars of content. There might even be some evidence left behind, but the defendant never tried to infringe and stopped it when they saw it, and yet they need to face the $150K firing line.
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Yeah, it's so hard to find actual infringers that they must be making it up. Don't worry, I know how incredibly important stuff like this is to you. Anything to take eyes off of all of the infringers you so desperately, and "secretly," support.
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While you are thinking about that, please explain the difference between bittorrent and a lending library (assuming the torrenters don't try to sell their downloads).
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But, to your point, I haven't really thought about it. I can see how there's a good argument that seeding implies a license to download, but I'm not sure how that's comparable to a lending library. Just because you can borrow a book, that doesn't mean you have an implied license to copy it and/or distribute those copies.
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Implied licenses is not the point. If I borrow a movie, or a book, or a music CD from the library vs downloading it, what is the difference in the financial position of the rights holder? One can check any of those items out multiple times.
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That the libraries are charged for each ebook borrow sounds like an extortionate money grab by the publishers. Why should ebooks be treated any different than dead tree book?
I don't borrow ebooks from the library, never had a reason to.
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Perfectly legal, and it drives certain greedy people crazy, which to my mind is an added, cost free bonus.
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This is not hard to grasp.
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Take two files and seed them into BT. They are absolutely identical in every way -- same checksum, same file name, same format, and when read by player software both display the same thing. But one was seeded by a hacker-wannabe and the other was seeded by the legitimate copyright owner.
Any automated system that currently exists will remove both because it can't tell the difference. But the thing is, the second file is 100% legal to download, because the copyright owner has the right to publish it that way.
There's even a free speech issue in all of this -- when a law mandates that a copyright owner cannot publish their own copyrighted work, it violates their first amendment rights.
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Feel free to check out the follow up question in the response post.
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You're confusing download protocols with file systems.
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You understand that they target the name on the bill, without any evidence to support that claim.
You understand when they get someone who is innocent who is fighting back they double down and threaten to run up the innocent mans costs defending against an action they know has no basis and is not brought in good faith.
You understand that they publicly infer their targets enjoy CP and bestiality videos, to secure a speedy settlement.
You understand they violate court orders and mislead the courts to hint at wrongdoing they can not prove even after their expert examined the evidence and came up empty as to evidence of being guilty so they throw more feces at the fan hoping some will stick and get them their settlement dollars.
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No, it's hard to profit from actual infringers, which is what these clowns are trying to do. Try to look beyond your usual "dirty pirates!" schtick and take note of the fact that this purely abuse of the copyright system for profit. If you're really so sure copyright is the only thing preventing total cultural meltdown then you should be equally outraged against it's abuse by people who have zero interest in actually protecting artists or their output.
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As long as the civil disobedience doesn't restrict the fundamental rights of all humans it either becomes defunct or if persuaded needs changing.
History shows this will happen again and again. So moan all you want. But the battle between publishers and those generally making a quick buck on their behalf and the world is already won by those millions and millions you describe.
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Fraud and more
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Why do copyright trolls ignore the big fish (initial seeders)?
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@ "Mikes position is more along the lines that copyright is intended to benefit the public (read the Constitution) not just rights holders"
It's you and Mike who haven't read it. Nothing explicit about the public.
The Copyright Clause is start of practical compromises so that "Authors and Inventors" can reveal their creations for public benefit without being ripped off by either individuals or commercial scale copying.
Techdirt's position that the Copyright Clause is solely for public benefit is mere assertion that goes against the clear language. That you repeat Techdirt's position rather than quote the original is... well, typical of the site! It's faith-based teachings not actualities, let alone the clear simple morality that creators own their creations and have sole control of copies -- yes, SOLE control: media only licenses you to read/view the content.
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Re: @ "Mikes position is more along the lines that copyright is intended to benefit the public (read the Constitution) not just rights holders"
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
Science and the useful arts are promoted by securing for LIMITED times the exclusive right, not by the securing of the exclusive right.
Exclusivity merely limits the use and development of the writings and discoveries to the rightsholder and the people they authorise to use them. It doesn't do much to actually promote them, it promotes instead the author/inventor's right to make money from them, and that's about it.
Science and the useful arts are promoted when the information is made freely available and anyone who wants to can innovate on it. THAT is the benefit to the public.
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@ "Mikes position is more along the lines that copyright is intended to benefit the public (read the Constitution) not just rights holders"
It's you and Mike who haven't read it. Nothing explicit about the public.
The Copyright Clause is start of practical compromises so that "Authors and Inventors" can reveal their creations for public benefit without being ripped off by either individuals or commercial scale copying.
Techdirt's position that the Copyright Clause is solely for public benefit is mere assertion that goes against the clear language. That you repeat Techdirt's position rather than quote the original is... well, typical of the site! It's faith-based teachings not actualities, let alone the clear simple morality that creators own their creations and have sole control of copies -- yes, SOLE control: media only licenses you to read/view the content.
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Re: @ "Mikes position is more along the lines that copyright is intended to benefit the public (read the Constitution) not just rights holders"
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Re: @ "Mikes position is more along the lines that copyright is intended to benefit the public (read the Constitution) not just rights holders"
Take the blinders off, and the MAFFIA's paycheck out of your ass.
I noticed that you did not, or could not answer my question.
Oh, I am now clicking report and will not engage you further as you only have one misguided point of view, and have proven that you misread enything your employers disagree with like the constitutions, copyright clause where the worrd 'sole' does not appear, along with other errors.
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Re: Re: @ "Mikes position is more along the lines that copyright is intended to benefit the public (read the Constitution) not just rights holders"
The only (SOLE) point of his posting isn't to convince or argue or anything else.
Its 100% to derail the discussion in case someone pops up something damning or relevant to the case.
This is why you get MPAA people posting random racist rants or suddenly out of the blue (see what I did there) saying stuff like women belong in the kitchen, it's ok to beat black kids etc......
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Now, let's see what the whole thing says...
'To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. Article 1, Section 8, Clause 8'.
As should be fairly clear by how it's written, in particular the 'To' and 'by' parts, the benefits to 'authors and inventors' are the means, not the goal. The goal is 'to promote the progress of Science and useful Arts', the exclusive rights is just the method to achieve that.
If it was found that no copyright whatsoever, or copyright that lasted all of one week accomplished the goal better, then it would be fully consistent with the copyright clause to make those changes, no matter what that meant for copyright owners.
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Don't you two have to make out over a bed made out of baby bones or something?
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Re: @ "Mikes position is more along the lines that copyright is intended to benefit the public (read the Constitution) not just rights holders"
If you want creators to have sole control of copies (yes, SOLE control!) of their creations, perhaps you should turn your attention to the fact that the first thing most creators have to do when publishing their work is to completely relinquish that control to industry gatekeepers. There are few "actualities" in your claims of creator control.
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quoting the Constitution out of context doesn't help your credibility
So, I guess now is as good as a time as any: Where were you on that issue? Afraid of showing your hypocrisy much?
Not to mention you intentionally dropped the "by" from the phrase "securing for limited Times ..." in a feeble attempt to paint that action as the goal rather than the method. It's obvious, when viewing the entire phrase that securing the monopoly is simply the technique, "To promote the Progress of Science and useful Arts ..." which is to benefit ... I don't know, let's see ... the public! This feeble attempt at distortion is intellectually dishonest and destroys your credibility (as if you had any in the first place! ha!)
And in response to this gem ...
It's you and Mike who haven't read it. Nothing explicit about the public.
... I think this quote from Neal Stephenson says it best:
It's pretty clear on which side of that line you fall.
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It is much more terrifying that the courts have never asked if the lawyers aren't misleading the court, even as evidence of their contempt for the courts piles up.
I have a rock, it keeps away tigers.
One should demand that there be proof before we outfit everyone with tiger repelling rocks.
I have a black box, it tells me who infringes.
As long as I don't have to explain how, without technobabble and experts who coded in java once, and deal with the inability to identify the actual infringer with this tech so we will then demand fishing trips into peoples lives to pressure them into settling... because we will violate any court order that demands we live up to innocent until proven guilty, because someones reputation is worth more than a couple thousand.
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AFter all, if they won't say where the funds are coming from, then they have zero percent chance of proving they AREN'T laundering cash for terrorists.
THis would then reveal who the 'mystery men' are, or Malibu Media would suddenly find itself in gitmo.
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Abolish Copyright
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How are these precedents going to effect shareware?
So while Copyright trolls are making some dirty moves, they aren't that much dirtier than conventional advertising. And in a lot of ways they are LESS dirty. I doubt Copyright trolls use the kind of psychologically invasive marketing techniques that are common in other markets.
So there is a subjectivity here that could easily evolve into regulatory capture. More importantly, such regulatory capture would likely target distribution networks most commonly used by small producers of intellectual property.
There is a difference between patent trolling, and copyright trolling. Patents are broadly scoped, and copyrights are narrowly scoped. We hazard ourselves for not giving that fact adequate deference.
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