Judge Denies Copyright Troll Malibu Media's Request For A Default Judgment

from the don't-see-that-every-day dept

Fri, Aug 14th 2020 9:35am — Mike Masnick

Lately so many of our copyright trolling stories have been about Richard Liebowitz or Mathew Higbee, but we shouldn't forget about Malibu Media, which is still out there doing Malibu Media things. The latest, to come out of a court in Connecticut is that the infamous copyright troll has had a default judgment request denied. This is exceptionally rare.

Default judgments are what you get when the other side doesn't even bother to show up. They're almost always granted as a matter of course (though, collecting on a default judgment is not always so easy). However, in this case US District Court judge Jeffrey Meyer isn't buying what Malibu Media is selling. Judge Meyer jumps right in and points out how unfair it is to blame the ISP account holder for actions that may have been done by someone else:

Imagine that someone accesses the internet via a particular internet protocol (“IP”) address and illegally downloads movies. That IP address was assigned by an internet service provider (“ISP”) to one of its subscriber accounts. Is it fair to say that the ISP account subscriber—the person who pays the internet bill—is the individual who must have engaged in the illegal activity and who should pay a large damages award if he or she does not appear in court to deny doing anything wrong? At a time when wireless internet networks and personal electronic devices are ubiquitous, and when network passwords, logins for TV streaming services, and Amazon accounts are freely shared with family, friends, roommates, businesses, and even strangers, I don’t think so.

From there, despite the defendant providing no defense at all, the judge says that Malibu Media "has not alleged plausible grounds" for the case and thus the request must be denied:

Defendant John Doe is the named subscriber to a Cox Communications internet service account that is associated with the IP address that was used to unlawfully download several of Malibu Media’s films. Because Malibu Media does not allege any additional facts beyond Doe’s subscriber status to show that he engaged in the unlawful downloading of Malibu Media films, I conclude that Malibu Media has not alleged plausible grounds for relief and will deny Malibu Media’s motion for default judgment without prejudice.

Again, many judges will just grant a default judgment as a matter of course, and wouldn't even consider whether or not there was a plausible claim in the complaint unless there was a motion to dismiss from the defense.

But, it certainly appears that more and more judges are wising up to copyright trolling tactics. Here, the court makes clear that it has the power to deny a default judgment in a case like this.

A court should not grant a motion for default judgment simply because a plaintiff alleges in a conclusory fashion that a defendant has violated the law. Instead, the factual allegations in support of default judgment must establish plausible grounds for relief. Thus, a court must evaluate whether the factual allegations set forth as a basis for the default judgment motion would survive a challenge by way of a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure.

And here, the judge appears to really understand that just having an IP address is not the same as knowing who did any infringement:

On the one hand, some courts conclude that, if there has been a copyright infringement traced to a particular IP address, it is plausible to conclude that the subscriber to the ISP account that corresponds to this IP address is the one who engaged in the acts of copyright infringement....

On the other hand, a growing weight of authority runs to the contrary, with courts concluding that a defendant’s status as subscriber of the ISP account associated with the IP address used to infringe a copyright, standing alone, merely makes it possible—rather than plausible—that it was the defendant who engaged in the acts of unlawful infringement....

What's notable here is how many of the cases the judge cites for both of those arguments are... Malibu Media cases. The judge has done the research it appears:

The Second Circuit has yet to address the issue, but the Ninth Circuit has persuasively explained why a plaintiff like Malibu Media does not state plausible grounds for relief by alleging only that a defendant is the registered owner of the internet subscriber account assigned to the IP address associated with the infringement activity. See Cobbler Nevada LLC v. Gonzalez, 901 F.3d 1142 (9th Cir. 2018). “Although copyright owners can often trace infringement of copyrighted material to an IP address, it is not always easy to pinpoint the particular individual or device engaged in the infringement.” Id. at 1146. “[S]imply establishing an account [that is associated with an IP address] does not mean the subscriber is even accessing the internet, and multiple devices can access the internet under the same IP address.”

The court isn't throwing out the case entirely, giving Malibu Media another chance to make their case, but also won't just rubber stamp a default:

To be sure, I understand that “the technology limitations potentially puts a plaintiff [like Malibu Media] in a difficult position in naming the correct defendant,” but “such limitations do not relieve a plaintiff of alleging sufficient facts so that a court can reasonably infer that the named defendant is the actual infringer.” Malibu Media v. Park, 2019 WL 2960146, at *6. Without additional allegations, “[i]t thus remains just as possible that the IP address was used by family members, roommates, guests, friends, and neighbors.” Malibu Media v. Duncan, 2020 WL 567105, at *6. Accordingly, I will deny the motion for default judgment without prejudice to renewal on the basis of additional allegations to plausibly show that it was Doe who engaged in the alleged infringing activity.

It's good to see more and more courts understanding the games copyright trolls play and not letting them get away with them.

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Filed Under: copyright, copyright troll, default judgment, ip address
Companies: malibu media

49 Comments

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That One Guy (profile), 14 Aug 2020 @ 9:34am

'Oh would you look at the time, gotta go...'
I rather suspect that the judge's request that they provide some actual evidence of guilt rather than just an IP address will see MM drop this and look for a judge that maybe isn't quite as knowledgeable on the subject and is more inclined to treat them as honest people looking to address real harms rather than parasites using the legal system for personal gain.
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Koby (profile), 14 Aug 2020 @ 10:08am

Service
We obviously have no idea who the John Doe defendant is, but I wouldn't put it past Malibu Media to improperly serve the defendant, in the hopes that if noone receives the paperwork, then Malibu can pick up an easy default win. Who did they serve? Someone who moved out of an apartment? An out of business fast food restaurant that had wifi? Who knows!
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Tim R (profile), 14 Aug 2020 @ 10:14am

This is actually fairly devastating to Malibu. Their entire business model is predicated on them having to do the absolutely minimum of work to collect a judgement. For them to actually be required to do due diligence digs pretty deep into their bottom line. It's not what they signed up for.
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Anonymous Coward, 14 Aug 2020 @ 10:33am

Re: Service
It's a John Doe, so they likely told Cox to tell the defendant. Did Cox ensure and confirm the defendant was contacted?
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Pixelation, 14 Aug 2020 @ 10:42am

Nothing like going up for the wide open slam dunk only to have the net removed. Whiff!
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Anonymous Coward, 14 Aug 2020 @ 10:44am

What a horrible injustice! How will the starving artists be paid for their work if they are limited to collecting from people who actually had access to it? And if the actors aren't paid, there would be no motivation to engage in sexual acts! Why, society would positively stagnate!
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Anonymous Coward, 14 Aug 2020 @ 11:01am

What can be done to identify an internet copyright violator.
To be clear, I'm not defending Malibu. In fact I'd prefer copyright were completely dropped and replaced with a system that only taxed economic gain from use of protected material at a reasonable rate.

That said, given the current state of relevant law and the technological limitations, what can a copyright holder do to sufficiently identify a copyright violator who uses the internet to commit the violation? I'm curious about the legal and/or technical possibilities open to the plaintiff in a case like this.
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RD, 14 Aug 2020 @ 11:40am

This is incredible!
This is incredible! I've been waiting 15 years for a judge, ANY judge, to finally see the truth of these types of cases and actually spend a minute learning how copyright and infringement and the internet work. Extraordinary! How sad is it that is has taken years and only a single judge can "get it?" Let's hope this is the kind of "virus" that spreads among the judiciary.
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TasMot (profile), 14 Aug 2020 @ 12:39pm

AND, after 8 years in the film business, they have not found a way to properly secure their property and/or start suing over hosting the films in torrents. If they sued a torrent host, they could stage (and film) the raids on the locations of the computers hosting the torrents and stop the downloading. However; that would stop the potential revenue stream from the "settlements" of the suits every month (provided their new lawyers aren't stealing it from them - https://www.torrentlawyer.com/lipscomb-claimed-malibu-unprofitable/
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Crafty Coyote, 14 Aug 2020 @ 12:52pm

Were these the same folks who put up pornographic movies on their own website as a way to "honeypot" downloaders?
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Anonymous Monkey (profile), 14 Aug 2020 @ 1:25pm

Re:
Not sure, but I think that was the Prenda Group of Misfits and Liars.
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That Anonymous Coward (profile), 14 Aug 2020 @ 3:26pm

Re:
Something something just because a whole bunch of their content ends up on torrent sites long before it is released on their offical site is no reason to think they are scam artists taking advantage of Judges not understanding technology.

Something something just because they complain about spending more money to offer customers a better service to compete while at the same time claiming their website was hacked multiple times, almost like clockwork, to gain access to the content is no reason to assume hackers are targeting them & perhaps they are lying about being hacked (they have NEVER offered anything but Collette crying about being hacked... AGAIN).

Something something they just want the name, so they can then initiate a deep dive into that persons life, the lives of any other residents, any visitors, anyone within wifi distance is no reason to assume that they just want to question all the neighbors about the target being a deviant porn thief to pressure a settlement. Just because they get forensically sound images of the targets devices (EVERYTHING in the home capable of dling form the internet) & don't bother to review them before discovery closes is no reason to think its a scam. Just because they enjoy implying wrong doing b/c they can find other copyrighted material but not theirs shouldn't mean it is a scam. Just because they turn peoples lives upside down & then they run when it comes time for them to provide discovery about the details of the scam is no reason to think it is a scam.
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That Anonymous Coward (profile), 14 Aug 2020 @ 3:30pm

Re:
Pretenda only had a honeypot in name only.
They tried the CFAA to shoehorn in they hacked our website (pity the site was never accessible from the wider internet).

Prenda uploaded the content onto popular torrent sites, then monitored every IP that ever accessed it. One might wonder if the copyright owner authorizes it to be posted online, it isn't an unauthorized download.

MM content just shows up magically online before release on their website and almost always in giant archives of multiple titles so they can drive the numbers up claiming 40 illegal downloads for a record of an ip address less than a millisecond long.
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tp (profile), 15 Aug 2020 @ 12:32am

Re:
How will the starving artists be paid for their work if they are limited to collecting from people who actually had access to it?
- Let government collect artist-tax?
- Sue random people visiting supermarket for sculpture likeness?
- Copyright infringement lawsuit related to t-shirt images?
- Sue pirates who have similar feature-lists?
- Throw dmca notices for anyone who uses standard sample packs?
- Settlement letters related to someone elses work?
- Let all soft-drink companies pay for the priviledge of using bottles?
- Patent-pending jevelry store robbery-prevention system access rights?
- Cloud-based quantum computer RSA cracking licensing fees?
- Count also other companies customers to your customer lists?
- Large Hadron Collider time slot payments?
- Artist's impression images usage rights from local universities and research institutions?
- Local city is paying rent for a permission to clean graffiti
- Fees for destroying a painting by trying to sell it
i.e. There's tons of different ways how artists can get their living expenses covered...
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Pixelation, 15 Aug 2020 @ 6:27am

The judge is Lucy, the default judgement is the football, Malibu Media is Charlie Brown...
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That Anonymous Coward (profile), 15 Aug 2020 @ 4:40pm

Re:
Sadly for the 10,000 attempts to kick the football the ball was held perfectly to be kicked through the goalposts.
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Anonymous Coward, 15 Aug 2020 @ 6:07pm

Re: Re:
What a surprise, the guy who thinks metro stations make money by charging people for maps defends the copyright troll.
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tp (profile), 15 Aug 2020 @ 11:58pm

Re: Re: Re:
its more like "friend of the court and justice"... always going with the truth...
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Anonymous Coward, 16 Aug 2020 @ 4:54am

Re: Re: Re: Re:
I notice that your list of ways of artists making money omit the way that successful artists make money, and that is build an connect with a fan base who will then support the artist in their endeavours. if there are not enough people prepared to through money your way, then your creative endeavours are not attracting fans, and you endeavours are a failure.
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Anonymous Coward, 16 Aug 2020 @ 8:18am

Re: Re: Re: Re:
If you were actually a friend of the courts and justice, you would have supported the judge's decision in this case.
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That One Guy (profile), 16 Aug 2020 @ 9:53am

Re: Re: Re: Re: Re:
Because that method requires that you offer something people actually want and that is worth the cost to get, and that you treat your customers well such that they want to give you money.
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tp (profile), 16 Aug 2020 @ 12:18pm

Re: Re: Re: Re: Re: Re:

You offer something people actually want

This isn't actually needed. Selling air is as good business practice than selling your valuable products...basically you just need to control the sales process enough that customers give you the money before they manage to notice how bad the end product actually is. Poor or awful products generally gets more internet complaints and thus more publicity than perfectly finetuned products which work every time.
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Anonymous Coward, 16 Aug 2020 @ 2:57pm

Re: Re: Re: Re: Re: Re: Re:
You business practices would be a good match for Richard Liebowitz, or the Prenda mob. What they are not however is honest.
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Anonymous Coward, 16 Aug 2020 @ 5:45pm

Re: Re: Re: Re: Re: Re: Re: Re:
He posted in support of Prenda Law's tactics, too. Not exactly surprising.
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tp (profile), 17 Aug 2020 @ 2:04am

Re: Re: Re: Re: Re: Re: Re: Re: Re:
it would more in support for all the artists...
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Anonymous Coward, 17 Aug 2020 @ 2:32am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
You posted in support of a lawyer who sued innocent people. You couldn't support an artist if your life depended on it, Meshpage.
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tp (profile), 17 Aug 2020 @ 5:47am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

You couldn't support an artist

I didn't say "an artist"... it clearly reads "all the artists"...
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Anonymous Coward, 17 Aug 2020 @ 6:25am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

it clearly reads "all the artists"

I'll make it clearer, then. You couldn't support all the artists if your life depended on it, because you're so terrible at supporting an artist, you'd rather support a scam lawyer instead of support actual artists. But what else did you expect from a guy who comes up with a 3D engine so unusable, so broken that his definition of what it'd take for Meshpage to succeed is for Pixar to die?
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Anonymous Coward, 17 Aug 2020 @ 8:30am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Just to rub salt into his wounds, Blender is going from strength to strength, and is competitive with Pixar, and is also free software.
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tp (profile), 17 Aug 2020 @ 9:27am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

Just to rub salt into his wounds,

You couldn't rub salt to the wounds, even if your life depended on it. The main reason is that you're (anonymous) coward. Basically its impossible for you to do anything until I can see the 3d models that you have managed to create. After you do that, I'll just compare your modelling work to random stuff I can google from the internet. And when your work isn't as good as Kenney's 3d models, it'll be sent to a long trip to the improvement camp. And it's very difficult to dig your way from the camp to the real world where all the juicy activity is happening.
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Anonymous Coward, 17 Aug 2020 @ 10:12am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
I never claimed to be a modeller, I was just pointing out that a program capable of competing with Pixar is available. If you want the history, and examples of what it can do.
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tp (profile), 17 Aug 2020 @ 10:25am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

I never claimed to be a modeller,

So you have no information about what artist's real problems are?
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Anonymous Coward, 17 Aug 2020 @ 5:37pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
It's quite clear that an artist's real problem is that there's a jackass in Scandinavia called Tero Pulkinnen who'd rather support a corrupt copyright lawyer than "all the artists".
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tp (profile), 17 Aug 2020 @ 7:55pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

there's a jackass in Scandinavia who'd rather support a corrupt copyright lawyer than "all the artists".

And this is because I'm so powerful and wise that even the most widely used services like techdirt actually listens what I have to say. This property alone makes it more scary than darth vader's breath. All the artists on the planet will listen and follow my instructions towards their eventual destruction.

Or this techdirt could be just for trolling...
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Anonymous Coward, 18 Aug 2020 @ 4:38am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

Or this techdirt could be just for trolling...

You literally called yourself a professional troll, genius. That sound you hear was the glass house you live in shattering into pieces.
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tp (profile), 18 Aug 2020 @ 5:48am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

You literally called yourself a professional troll, genius.

Yeah, but my 2nd job is something more respectable. Too bad techdirt never allowed anything else than the troll mode.

That sound you hear was the glass house you live in shattering into pieces.

I'm not a veggie. I don't live in a greenhouse. The only glass I see is these crystal glassware used to drink locally produced milk substitute.

Also, my 3d engine currently cannot implement this shattering glass feature. Transparency feature isn't implemented properly, and a mesh cannot be split to pieces in such way that it'd look like shattered glass. So your requirements for shattering glass will unfortunately need to be rejected.
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Anonymous Coward, 18 Aug 2020 @ 8:28am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Your efforts to produce and sell a 3d engine look like a troll of the public, and so your second job is less than respectable.
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tp (profile), 18 Aug 2020 @ 12:58pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

Your efforts to produce and sell a 3d engine look like a troll of the public

that wasn't my 2nd job. You missed the actual thing, when you don't read my messages properly.

it comes from the veggie section.
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Anonymous Coward, 18 Aug 2020 @ 5:39pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
If your first job is professional troll nobody cares what your second job is. It turns out being an obnoxious fucknugget means people think you're wrong, who knew?

But seriously, if your job is stocking the veggie section of the supermarket literally no one would be surprised.
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tp (profile), 18 Aug 2020 @ 10:55pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

if your job is stocking the veggie section of the supermarket

uh, nope... all the veggie stuff is a scam. that only happened because you wanted greenhouses to the story. The only relevant piece is the last word: "substitute"... it is nice logic and math concept and I just used the word to escape from your awful veggie world...
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Scary Devil Monastery (profile), 19 Aug 2020 @ 2:36am

Re:
"If they sued a torrent host, they could stage (and film) the raids on the locations of the computers hosting the torrents and stop the downloading."

Not really. I mean, they did try their damndest to take down the pirate bay...and wouldn't you know it, that site is still up and running.

Not to mention that since those early days torrents have migrated to decentralized hash tables, rendering a central host more or less optional in the first place.
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Anonymous Coward, 19 Aug 2020 @ 6:14pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
For a programmer you really have no idea what the word "if" means, but then again you think the whole point of running a subway transport network is to charge people money for the maps.
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tp (profile), 19 Aug 2020 @ 10:38pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

the whole point of running a subway transport network is to charge people money for the maps.

there's no point in allowing some random people to make joke maps that clone valuable intellectual property, but steer people to wrong subway train.

The tube map abstraction is such a powerful tool that the train company can own the whole concept.
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Anonymous Coward, 20 Aug 2020 @ 1:15am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Oh, joy, we're taking this shit to single-letter-per-column levels of idiocy again.

Your underlying argument that something valuable is being "stolen". If the "joke map" points people to somewhere incorrect then there's no market in it because nobody buys a map that tells them to go to the wrong location.

As usual your hypothetical apologisms for copyright are entirely based on assumptions that everyone has your brain-dead command of the English language. And that's the best case scenario. The worst case scenario is you think intellectual property requires the government to mandate everyone suck you off.
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tp (profile), 20 Aug 2020 @ 4:30am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

because nobody buys a map that tells them to go to the wrong location.

its already too late to complain when this happens the first time. The joke map looked exactly like the original when you examined it on purchase, since you allowed copyright infringement of the tube map elements. Then the joker got your money and your part become following instructions of a joke map. When you realize your mistake its already too late...

now if copyright law requires the jokers to create all the graphics from scratch, you can regognise joke maps from their lower quality, and no damage will happen. Also when they can't use trademarks of the train company, selling joke maps which substitute the original without customers knowing about the scam becomes more difficult...

then you only need to be careful with actual criminals who refuse to follow copyright law....
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Anonymous Coward, 20 Aug 2020 @ 7:03pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Ah, rehashing the old arguments in that thread are we?

I said it before and I'll say it again. You're the kind of person who thinks asking for directions is something you have to pay someone else for, which already puts implications on your argument - but in this case the artist created his map from scratch, and the "official" map came after the artist created his map. So you're claiming the artist infringed on the copyright of a map that didn't exist at the time of infringement.

And you wonder why people haven't bought in on your spectacular Meshpage engine. Messpage, more like.
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tp (profile), 21 Aug 2020 @ 3:19am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

the artist infringed on the copyright of a map that didn't exist at the time of infringement.

He can just use "causality" as his defense. That's quite good position.

But obviously the people who built the damn tube stations might have even better arguments, like "we paid 32 billion dollars to get the stations built" and "when we got them finished, there exists some joke maps in the market"...
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Anonymous Coward, 24 Aug 2020 @ 9:36pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
"Someone made a map of the system I was building before it was even completed" is a terrible argument to propose.

No judge is going to rule against subway system fanfiction, because such a fanfic would be pointless.
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Anonymous Coward, 25 Aug 2020 @ 7:06am

Putting the Pulkinnen nonsense aside for a moment
While we're on the subject of Malibu Media and default judgments, and since Federico brought up a few Leonard French references in the Liebowitz threads, I thought I'd take a look at what else Malibu Media has been doing.

Techdirt readers might remember Malibu Media's working relationships going absolutely downhill. It's to the point where their previous article on Techdirt saw one of the law firms they worked with suing them for attorney's fees owed, after the copyright trolling system ceased to be lucrative. So where's the updates on that?

Turns out that according to Leonard French, the case ended March this year - when Malibu Media just failed to show up. They finished their own case the same way they scraped through getting favorable judgments - by default. They spent so much time and effort claiming they're not Prenda, then said "No!" and ran away as fast as they could when the law meanies came knocking on their door.

You seriously can't make this shit up. Copyright is brain damage.
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