When Sued By A Copyright Troll, Using The 'Blame The Torrent Site And Also I Don't Speak English' Defense Is Really Dumb

from the not-how-it's-done dept

It's one thing to take a stand against questionable copyright trolling, but it's another thing to be a really bad defendant. We had this with both of the RIAA's lawsuits against Jammie Thomas and Joel Tenenbaum. In both cases, they were bad defendants who clearly broke the law and then tried to play cute in defending themselves. In both cases we pointed out that they should have settled, and that fighting on when they had no case was a really bad idea. Yes, there are all sorts of ridiculous things about many of these cases, and there are all sorts of legal questions raised about them. But if you're caught dead to rights infringing on the works of others, pretending that some magical fantasy world is going to open up in the back of the closet is just silly. Even worse: bad defendants create really bad case law that allows copyright trolls to use those cases to shake down lots of other people, many of which probably have much stronger cases.

Unfortunately, it looks like we have another example of this. Uber copyright troll/porn producer Malibu Media has won an easy lawsuit against a defendant who tried to blame everything on the fact that he used Kickass Torrents to download Malibu Media movies. 57 of them. That kind of blaming the middleman is never going to work. In fact, others have tried it in the past, and it doesn't work. As the judge in the case noted:

Defendant has some quarrels with the details of how BitTorrent works, but nothing that the Court sees as a fundamental or material issue of fact. Even as Defendant describes the facts, using BitTorrent technology, he ultimately winds up with 57 unauthorized copies of Plaintiff’s works—copies that did not exist until Defendant himself engaged the technology to create new and unauthorized copies with a swarm of other users. True enough, the process is not identical to the peer-to-peer file sharing program in Grokster. It is, however, functionally indistinguishable from the perspective of both the copyright holder and the ultimate consumer of the infringed work. In both situations, the end user participates in creating a new and unauthorized digital copy of a protected work. It makes no difference from a copyright perspective whether the infringing copy is created in a single wholesale file transfer using a peer-to-peer protocol or in a swarm of fragmented transfers that are eventually reassembled into the new infringing copy.

Of course, one could make a reasonable argument that the fragmented transfers raise issues concerning the distribution right of copyright, but not the reproduction right. On the reproduction right, the defendant, Don Bui, is clearly cooked. And he and his lawyer should have recognized that much earlier. Instead, they get this ruling that, because of the bad defendant, makes a bunch of broad statements that go beyond just Bui's immediate case and may create problems elsewhere. For example, the judge, Robert Jonker, cites the Aereo ruling to support this -- even though that's a dangerous way to read the Aereo ruling. Jonker seems to accept the "don't look in the black box, just look at the end results" aspect of Aereo. But, under such a system, lots of things that aren't infringement might now be judged infringing. It's basically a shortcut to avoid careful analysis, and that's what happens when you have bad defendants who clearly infringed.

Bui's lawyer also tried the "poor immigrant who doesn't understand English very well" argument and saw that shot down as well. Deservedly so. There are plenty of reasons to challenge questionable lawsuits. And plenty of reasons for some folks to legally attack the underpinnings of copyright trolling -- including things like honeypots and abusing the judicial system to shake down people -- but taking a bad defendant all the way through the legal process is a bad idea. And the end result is going to be that Malibu Media not only claims vindication for its activities, but waves them around to every reporter, judge and (most importantly) future targets of its shakedown game.

Filed Under: bad defendants, blame, copyright, copyright troll, don bui, infringement, jammie thomas, joel tenenbaum
Companies: malibu media

Copyright Troll Malibu Media Allowed To Get Six Strikes Info From Comcast

from the bad-decision dept

A few weeks ago, we wrote about how Malibu Media was up to its old tricks again, demanding six strikes data from Comcast as part of its evidence gathering for its copyright trolling. Apparently, no one fought the request, so a magistrate judge has granted Malibu Media's request and told Comcast to comply with the forthcoming subpoena. When the six strikes plan was first put into place, many people worried that the information from it would be used in lawsuits, but people hadn't realized that it might also get abused by copyright trolls. All the more reason to question whether or not such a program is a good idea. When you have a system that allows "strikes" to be issued with no due process at all, which can then be used by a company currently responsible for 40% of all copyright lawsuits -- nearly all of which they're really using to shake down settlement fees -- it should make you wonder if the six strikes program is really such a good idea.

Filed Under: copyright, copyright troll, discovery, six strikes, subpoena
Companies: comcast, malibu media

Copyright Troll Malibu Media Tells Court That Its Critics (And Opposing Lawyer) Are Part Of A Psychopathic Hate Group

from the good-luck-with-that dept

You may recall, back when things were getting particularly desperate for Prenda Law, that it suddenly filed a series of lawsuits against its largest critics, including the users of the two major copyright troll tracking websites: FightCopyrightTrolls.com and DieTrollDie.com. That didn't work out too well, but Prenda's successor-in-spirit, Malibu Media, apparently did not learn the lesson. In a rather incredible filing in one of its cases in Illinois, one of Malibu Media's main lawyers, Mary K. Schulz, absolutely flips out about FightCopyrightTrolls and its publisher SophisticatedJaneDoe, calling the site's readers "an internet hate group" and accusing it of being engaged in "illegal extrajudicial tactics" in working with lawyers who are fighting Malibu Media cases across the country. The filing has to be read to be believed. The purpose of the filing is to try to bar opposing lawyers from talking to people associated with SJD's site, because how dare opposing counsel actually be provided with relevant information to a case, concerning how Malibu Media operates (such as champerty or copyright misuse or other questionable tactics including a bogus "exhibit" that has nothing to do with the case in question.

It appears that Malibu Media's lawyers have something of a persecution complex:

Plaintiff is the target of a fanatical Internet hate group. The hate group is comprised of BitTorrent users, anti-copyright extremists, former BitTorrent copyright defendants and a few attorneys. Opposing counsel is one of its few members. Indeed, as shown below, opposing counsel communicates regularly with the hate group’s leader. Members of the hate group physically threaten, defame and cyber-stalk Plaintiff as well everyone associated with Plaintiff. Their psychopathy is criminal and scary.

By administering and using the defamatory blog www.fightcopyrighttrolls.com, “Sophisticated Jane Doe” (“SJD”) leads the hate group. SJD is a former defendant is a suit brought by another copyright owner... She is a self-admitted BitTorrent copyright infringer. SJD’s dedicates her life to stopping peer-to-peer infringement suits.

Most of the rest of the filing is taking some of SJD's admittedly mocking tweets and trying to twist them into some sort of conspiracy against Malibu Media and all of its lawyers. Ridiculously, the filing asserts that "The Internet hate group has conspired to and is implementing an unethical and illegal campaign to intimidate Plaintiff by threatening it with criminal sanctions." As lawyers, they must know that only the government can actually get criminal sanctions. No private individual can legitimately threaten anyone with criminal sanctions. Opining that certain actions may open you up to criminal sanctions is very, very different than actually threatening someone with criminal sanctions when you have no direct power to do so.

Schulz also attacks the lawyers fighting against Malibu Media for not asking SJD to stop, as if they have any control over the situation, and as if they have any obligation to ask someone to stop investigating and mocking Malibu Media and its lawyers. Much of the complaint focuses on how the lawyer opposing Malibu Media in this case is "a key member of the internet hate group."

Opposing counsel regularly Tweets with the other members of the hate group. Further, his Tweets are often part of a series of Tweets intended to harass Plaintiff and its counsel. Opposing counsel also Tweets about on-going litigation including this case and disparages Plaintiff... He even called Plaintiff a liar.

Opposing counsel is SJD’s and the other hate group members’ darling. They give him Kudos as he works toward trying to criminalize peer-to-peer copyright infringement suits.

I've seen no indication that anyone is trying to "criminalize" copyright infringement suits. They're pointing out other behavior that may violate various criminal statutes. There's a pretty big difference there. Malibu Media is also upset that the lawyer in question, Jonathan Phillips, actually releases some of the evidence turned up during discovery on his website. Because, apparently, Malibu Media thinks the legal process should be held entirely in secret. While it points out, accurately, that there is not a "first amendment right to see discovery materials," that doesn't mean they must be kept under seal.

Basically, the entire filing is an effort to (1) slam Malibu Media's critics, accusing them of defamation and illegal tactics, without ever actually filing a lawsuit against them and (2) more importantly, an effort to make sure that a bunch of potentially damning and embarrassing information about Malibu Media is kept secret. Either way, calling a bunch of your online critics psychopaths and a hate group isn't generally a strategy that works long term.

Filed Under: copyright troll, discovery, fightcopyrighttrolls, hate group, mary k. schulz, secrecy, sjd, sophisticated jane doe, x-art
Companies: malibu media

International Men Of Mystery: How Discredited German 'Anti-Piracy' Company May Secretly Be Behind Malibu Media's Copyright Trollery

from the well,-look-at-that dept

Things have been getting more interesting on the Malibu Media front lately. The company, which is responsible for 40% of all copyright cases, has certainly faced claims of abusive and seriously questionable practices. But some new information suggests it goes much further down the rabbit hole of questionableness. Like Righthaven and Prenda before it, new accusations are coming out about some highly questionable shell games to try to hide what's really going on.

In this case, it's come out that behind all of Malibu Media's shady tactics, the folks actually pulling the strings (or, at least, heavily involved) may be the German company Guardaley, or one of its many sneaky shell companies. If you've been following copyright trolls for a while, you may recognize Guardaley as the shady company involved (secretly) in some of the original copyright trollery in the US, which was slammed in court for highly questionable technology that was at the center of its attempts to "identify" people to go after in the shakedown scam known as copyright trolling.

Guardaley had been laying low for a while, but back in April, Sophisticated Jane Doe over at FightCopyrightTrolls turned up Guardaley's secret playbook, which was clearly not meant for public consumption. It is... quite a read. It highlights the various shell games and individuals involved -- and also notes how Guardaley can quickly churn out cookie cutter legal filings against the various individuals it "sues" (with the entire effort actually focused on getting people to pay them to go away). And, astoundingly, it basically admits that Guardaley will supply bogus "experts" to support the claims in court. From page 35 of the presentation: Okay, now jump back to January, in which one of the lawyers representing Malibu Media admitted that the "expert" company it uses, IPP (a Guardaley shell) worked "pursuant to an oral contingency fee." In other words, it was getting a cut of any money secured via these lawsuits and corresponding shakedowns. That's kind of a big deal: when your "expert witness" has a direct financial stake in the outcome, that means your expert witness is doing something very, very shady. No wonder Guardaley doesn't want the judges to question them too much.

For the past few months there had been some ongoing efforts to get various Malibu Media lawyers to reveal the details of their relationship with Guardaley/IPP and other related shells. Not surprisingly, Malibu Media lawyers are trying to block all of that. This finally resulted in an impressive filing from copyright troll fighter, lawyer Morgan Pietz, who accuses the company of champerty -- a scheme to "buy into" lawsuits, something that is at the very least frowned upon, but more frequently against the law. Furthermore, Pietz notes that Malibu Media should have been proactively disclosing Guardaley's interest in the cases, but has not -- instead highlighting how the company (actually, its lawyers) has been "fighting tooth and nail all attempts by defendants to inquire about these arrangements." He even calls Guardaley "the German computer guys."

Separately, the filing dismantles Malibu's bizarre attempt to avoid this whole issue by blaming it on some other guy in Florida.

Malibu concedes that it did [disclose this information] here, and counsel on the pleadings here in Maryland concludes that there could not possibly be any kind of breach of this duty because lead national counsel in Miami, not counsel here, negotiated the improper witness contingency agreement. Regardless of what local counsel here did or did not know, lead counsel in Miami, whose firm presumably authored the early discovery papers in the first instance, and who participated in the consolidated proceedings in this district before Judges Titus and Grimm, had a duty to make sure this fact was disclosed to the Courts here and across the country.

The filing then goes into significant detail about the whole mess, under the wonderful title:

International Men Of Mystery: Tobias Fieser, Michael Patzer, Daniel Macek, Patrick Achache, Guardaley & The Shell Companies, And The Software With A Name Nobody Seems To Know

The "software with a name nobody seems to know" involves constantly changing claims about what software is being used to identify people accused of infringement, along with the claims that this unnamed and ever-changing software is somehow infallible (despite Guardaley's tech being so discredited previously). In an amusing section, Pietz points out how quite clearly "fallible" the technology is:

In the letter Malibu submitted to Judge Titus and Judge Grim last year, they argued that IPP’s proprietary software was literally “infallible.” ... In the opposition to the instant motion, Malibu submits a declaration from Michael Patzer where he avers that “the PCAPs recorded the IP address 76.100.228 [sic] infringing Plaintiff’s copyrights.” That is incorrect. Mr. Patzer left out three digits in that IP address. This simply goes to show that no matter how “infallible” Malibu and Patzer think the software and corresponding proprietary system they designed may be, there is always room for human error, at either the input stage, or the output stage.

The filing highlights the similarities of these shell companies with the recent ruling against Prenda, and highlights increasing evidence of how the people above are really deeply involved in a bunch of shell games. It calls out evidence in a non-Malibu Media case, Elf-Man LLC v. Lamberson, which lays out more evidence of an incredible circle of shell companies. I won't repost it here, but it's worth reading, just to see some of the crazy chain of shell companies. This is not the whole chain of crazy, but just a snippet:

As the defendant’s own investigation revealed in Elf-Man, Crystal Bay Corporation, the company Macek (and Patzer?) supposedly “worked for” ... was a defunct South Dakota corporation, apparently incorporated in 2012 by a disbarred lawyer who, according to his website, “now specializes in creating ‘anonymous’ ‘shelf’ corporations.” .... The official address Crystal Bay Corporation registered with the South Dakota Secretary of State? It belongs to a mail forwarding company, and it is the same address given for the disbarred lawyer’s “Agent Services” company.... Same thing with the Stuttgart, Germany address given for Patzer and Macek: it corresponds to an office building in Stuttgart “that offers mail drop services and short term office rents, even by the hour.” ... The Elf-Man defendant also investigated the phone numbers given for Patzer and Macek. The regional code for Macek’s number corresponded to Karlsruhe, Germany. The regional code for Patzer was for a suburb of Karlsruhe....

The coup de grace from Elf-Man: when defense counsel there recently called the (Karlsruhe) phone number given for Macek in the initial disclosures in that case, the person on the other end of the line answered it “Guardaley.”

Boom. Also, there's the part in which one of the guys admits he works for one of these shell companies and then has to be lead by Malibu Media's lawyer into saying he didn't actually work for the company:

More importantly, the testimony Malibu complains Pietz omitted only further supports the argument that Guardaley = IPP = Excipio, and that Patzer, Fieser, and Macek are all part of the same organization. For starters, at the beginning of Patzer’s testimony, he first says “yes” when asked if he works at IPP Limited.... Malibu’s counsel then asks him a leading question, reminding him that “you don’t actually work for IPP, Limited. You said you work for a firm that provides these services to IPP, Limted, correct?” and Patzer confirms that.... However, throughout Patzer’s testimony, he constantly refers to “we” when it is clear he is referring to IPP. None of that suggests that Excipio is really a totally different company that should be credited as possibly more trustworthy than Guardaley; it suggests Patzer thinks of himself as working with Fieser at IPP.

And, of course, days after this was filed, the lawyer who had been representing the copyright holders in Elf-Man, Maureen VanderMay, suddenly filed a motion to withdraw as counsel, noting that "issues have arisen between Plaintiff's representative and counsel, the nature of which make it impossible for counsel to both continue with representation and comply with the governing rules of professional conduct." However, she refuses to detail those reasons, citing their "privileged and confidential nature," though says that if required to, she would like to do so under seal. It's not too difficult to put two and two together here, suggesting the likely issue is that VanderMay realized how much trouble everyone involved in this scheme may be in soon. And, anyone who witnessed both the Righthaven and Prenda debacles knows that random outside lawyers who help out are the first ones often thrown under the bus in these disputes.

There have been stories for quite some time suggesting Malibu Media was, in some ways, worse than Prenda. Now, it appears that it may have been Guardaley and its rotating crew of shell companies behind all of this all along -- something they'd mostly been able to keep quiet. However, it looks like the scheme may be starting to unravel. Now, we just need Pietz to put together one of his infamous org charts like he did with Prenda.

Filed Under: champerty, copyright trolls, daniel macek, elf-man, michael patzer, patrick achache, shell companies, tobias fieser
Companies: apmc, excipio, guardaley, ipp, malibu media

Malibu Media Continues To Seek Six Strikes Data From Broadband Providers To Use Against People It Sues

from the troll-troll-trolling dept

Ever since the infamous "six strikes" Copyright Alert System (CAS) was "voluntarily" agreed to (under threat that Congress would enact legislation) between some big ISPs and the MPAA/RIAA, people have pointed out that it was only a foot in the door, which would then likely be used in lawsuits either against the individuals or against ISPs. A year ago, we noted that prolific copyright troll Malibu Media had subpoenaed Verizon to try to get the six strikes data on someone it was suing, and now the company has done the same thing again with Comcast. While Malibu Media eventually dropped the request for info from Verizon, it seems likely that this type of request will become more common.

And it's yet another reason why the whole six strikes/CAS program is so troubling. It involves a list of accusations, not convictions, of copyright violations, where the person being accused has no real recourse (there is a limited right to appeal, which costs money and does not even allow you to make use of basic defenses, such as noting that a work is in the public domain). While defenders of the program didn't seem to think there was anything wrong with this sort of "guilty until proven innocent with limited defenses" setup, in part because it wasn't a court case, the fact that this data may now be used in court cases should be insulting to basic concepts of due process.

Filed Under: cas, copyright, copyright alert system, data, lawsuits, six strikes
Companies: comcast, malibu media

Magistrate Judge Recommends That Copyright Misuse Defense Be Allowed Against Copyright Troll Malibu Media

from the it's-something dept

It's rare, but every so often we'll see courts willing to entertain claims of copyright misuse. These are situations where copyright law is being so obviously abused for other purposes that a court slaps the abuser down. While it may not go anywhere, it appears that copyright trolling leaders, Malibu Media, who are single-handedly responsible for 40% of all copyright cases filed this year so far, may now have to respond to claims of copyright abuse. In one of its lawsuits, the defendant, Ben Miller, hit back with a long list of defenses, most of which have been rejected or set aside. However, a magistrate judge is recommending the copyright misuse defense be allowed to move forward:

Here, Defendant contends that “Plaintiff uses the same procedures of monitoring unsuspecting members of the public, directly connecting with the individual’s IP address, providing no ‘cease and desist’ notice, waiting until the evidence is destroyed, filing suit, and then offering to settle in exchange for dismissing the suit.” ... Plaintiff counters that “all it has ever done with respect to its copyrights is bring suits to enforce them; as a matter of law, doing so is not copyright misuse.”....

The Court finds that Defendant’s allegations are sufficient to support the affirmative defense. To the extent that the Plaintiff argues Defendant has failed to demonstrate, through his allegations, that the Plaintiff has “misused” the copyright law, the Court finds that such theory necessarily involves the issue of motive, which is generally reserved for the factfinder... (defendant must prove plaintiff “illegally extended its monopoly beyond the scope of the copyright or violated the public policies underlying the copyright laws”). Likewise, to the extent that the Plaintiff argues a “misuse” defense cannot be asserted if the allegation is merely that Plaintiff has filed a suit for infringement, the Court finds that Defendant has sufficiently argued more than the single allegation

The court need not go with this recommendation, but if it does, it could be worth watching closely. Remember, Malibu Media has already been in trouble for some of its practices, and others have long argued that the company is worse than Prenda with its tactics.

Filed Under: copyright, copyright abuse, copyright misuse, copyright troll
Companies: malibu media

One Single Porn Copyright Troll, Malibu Media, Accounted For Nearly 40% Of All Copyright Lawsuits This Year

from the shakedown dept

We've written about porn copyright troll Malibu Media a bunch of times in the past, including noting late last year that it had filed over 1,100 copyright lawsuits in 2013 alone. Many who follow copyright trolling have noted that Malibu Media's practices (and those of the lawyers who represent it) may be much worse than even Prenda, who has become synonymous with questionable copyright trolling practices. The New Yorker has written up a profile of Malibu Media and its copyright trolling, generously referring to the company as an "erotica" website.

Matthew Sag, who has written up an empirical study on copyright trolling, with lots of data, notes that Malibu Media alone is swamping the court system with lawsuits. Of 872 copyright claims filed in the first quarter of 2014, 343 of them were from Malibu Media. Sag also recently updated his chart showing different types of copyright lawsuits, from "regular" copyright lawsuits, those against "porn John Does" and "other John Does." The "red" sections for "porn John Does" is basically almost entirely Malibu Media at this point (back in 2011 and 2012, many were Prenda). Oh, and if you're wondering about the bump from 2004 to 2007, much of that was back when the RIAA decided to sue thousands of music fans for file sharing music. That strategy turned out to be a disaster, but the RIAA, in many ways, wasn't quite as bad as the trolls. The RIAA was on a moral mission -- it never cared about squeezing money out of people. Malibu Media, on the other hand, is all about the trolling: using the court system as part of a shakedown system to scare people into settling. The New Yorker article only hints at how this is not a legal strategy, but rather a business model, to use the fear of the judicial system to get tons of people to just pay up.

Filed Under: copyright, copyright trolling, porn
Companies: malibu media

Copyright Troll Malibu Media Has Filed Over 1,100 Lawsuits This Year Alone

from the and-shows-no-signs-of-slowing-down dept

For all the attention that Prenda has received this past year or so as being at the extreme crazy end of copyright trolling, many have argued that Malibu Media is just as bad, if not worse. While the porn company has hit some snags with its lawsuits, such as getting sanctioned for the infamous Exhibit C, which was an incredibly sleazy attempt to intimidate people into paying up, the company appears to have shook off that loss and just continued suing as many people as possible. Dave Maass is pointing out that in just 2013, the company has filed more than 1,100 lawsuits. Think about that. We're talking about around 3 lawsuits per day by this one company. If you ever needed proof that the company is focused on using abuse of our judicial system as a key piece of its business model, that seems like fairly compelling evidence.

Filed Under: copyright, copyright troll, lawsuits
Companies: malibu media, xart

Malibu Media Sanctioned Again For Bogus Copyright Abuse & Intimidation

from the start-adding-them-up dept

Back in September, we wrote about porn trolling company Malibu Media getting sanctioned for its ridiculous use of "Exhibit C" in its legal filings against people it accused of unauthorized downloads of porn content that it held the copyright on. Exhibit C was a completely useless exhibit that had nothing to do with the actual case at hand, but listed out other content that Malibu insisted the same person was downloading. None of the titles listed in Exhibit C were content where Malibu Media held the copyright. Instead, it was almost always titles of porn videos that would be considered very embarrassing for some people. The obvious intention: scare people into settling early to avoid having their names attached to a federal lawsuit where the records showed a long list of explicitly named movies that someone had downloaded. The court in the Western District of Wisconsin sanctioned Malibu's lawyers $200 per case, for a total of $2,200.

Now, in a similar finding over in the Eastern District of Wisonsin, Judge Rudolph Randa has basically found the same thing and piled another $600 in sanctions for three cases in that district onto Malibu Media. Another $600 is pocket change of course, but there are a ton more of these cases out there, and if more and more courts start recognizing the game that Malibu is playing... we could be in for another Prenda-like domino effect. The court makes it clear that it recognizes that Malibu Media is abusing the judicial process to try to convince people to pay up. Hopefully more courts will begin to recognize this as well.

Filed Under: exhibit c, sanctions
Companies: malibu media

Copyright Troll Malibu Media Sanctioned For Bogus Copyright Abuse & Intimidation Tactic

from the there-goes-another-one dept

For the last few months, I'd been meaning to write some more about Malibu Media, a major copyright troll who we've mentioned a few times in the past. Some have been arguing that (believe it or not), the company is even worse than Prenda. Of course, with so much other stuff going on, I haven't had as much time to dig in, but the company just got hit with some sanctions. A few months back, people realized that one of Malibu Media's tactics was to send a now infamous "Exhibit C" court filing to the subscribers they were accusing of infringing on their copyrights. The problem? The movies in Exhibit C -- which tended to be hard core porn films -- had no connection to Malibu Media. They didn't hold the copyright on them at all, and certainly had no standing to sue over them. Basically, Malibu would file this list of other movies the person may or may not have been sharing, with really offensive names, knowing that if the names became public it would likely be quite embarrassing for the recipients of the threat letters. It seemed pretty clear that the idea was to intimidate people into paying up. EFF summed up the situation a few months ago:

Malibu Media, which runs the site "x-art," files civil complaints in courts around the country. Each complaint accuses an anonymous Internet user of illegally downloading and sharing one or more of Malibu's movies. But the complaint goes further: Malibu attaches a list of other movies and files that Malibu accuses the user of copying illegally. Some of them have titles that are far more lewd and embarrassing than the titles of Malibu's own movies. But Malibu doesn't own the copyright in those other movies, and can't actually sue over them. There's no legitimate reason to attach that list of other titles to a complaint, because complaints in federal court are not the place for laying out evidence. They're just to initiate a case and let the other side know what the case is about. But adding some really embarrassing titles to a complaint and filing it on a public court docket ups the embarrassment factor and discourages innocent people from standing up for themselves in court. (It's not clear what those extra titles would add to a court case, anyway - most judges would bar them from being read to a jury.)

A court became suspicious of this, and ordered Malibu Media to explain. The company's main lawyer in these cases, Keith Lipscomb, was then quoted in a ridiculous filing in which he swore up and down that he had no intention to intimidate people with that bogus list at all. He was just... um... making his "case stronger." Yeah, that's the ticket...

It goes on to claim that Exhibit C, which (again) does not involve anything that Malibu Media holds a copyright on, and which they have no right to sue over, is part of the "breadcrumbs" that help solve the "whodunit." How, you might ask? Well, Malibu Media claims that all of the other non-Malibu Media content that they attach to the lawsuit helps establish who really did the file sharing, because that other content might just include other things associated with that person.

Of course, even if that's true (and it's incredibly weak as arguments go), it doesn't matter, because you don't file that kind of thing with the initial case. It's (at best) evidence that is presented during the actual case itself, not with the initial complaint. EFF thankfully jumped in and filed an amicus brief highlighting just how ridiculous Malibu Media's explanation was:

This is nonsensical. Complaints are pleadings, not affidavits, so they have no “evidentiary purpose.” Complaints are to provide “a short and plain statement of the claim showing that the pleader is entitled to relief.” .... Here, in each case, plaintiff is explicitly disavowing any claim based on Exhibit C. If it were to matter, under what rule of evidence would Exhibit C be relevant at any stage of this lawsuit? Propensity evidence is forbidden by F.R. Ev. 404(b)(1). Plaintiff makes no claim that Exhibit C is relevant under Rule 404(b)(2), and if it did, then the weighing process of Rule 403 would militate forcefully toward excluding this evidence. So what’s really going on here?

Even a cursory review of each lawsuit’s Exhibit C shows first, that it is always much, much longer than the short list of titles that is the actual subject of plaintiff’s lawsuit, and second, that among the innocuous titles listed in each Exhibit C (e.g., “Top Gear,” “Star Trek VI”) are numerous “adult” programs, usually many more than the handful for which plaintiff is claiming a copyright violation, and many with titles exponentially more lewd than any title claimed by plaintiff. Compare “Red Satin” with “[Bestiality] Young Blonde . . . Dog (www.sickporn.in).” One needn’t be a cynic to suppose that an intended purpose–perhaps the primary purpose–of Exhibit C to the complaint in each of these lawsuits is to increase the pressure on a subsequently identified Doe defendant to settle before s/he is publicly linked to hardcore/deviant titles that are completely irrelevant to plaintiff’s actual claims in the lawsuit.

Thankfully, the judge has now agreed and issued sanctions. The opinion more or less adopts exactly the points made in the EFF's filing. Judge William Conley also shreds Malibu's explanation for the filing, pointing out how each argument Malibu made makes no sense and could have been accomplished in other ways that don't lead to "extorting unreasonable settlements." As the Judge says:

Nothing is gained by filing this document publicly in unredacted form, except to harass and embarrass defendants into early settlements

Later in the filing, after eviscerating all of the reasons Malibu presented, the judge notes that the silly statements of both Malibu and its lawyer that there was no "ill intent" here don't even pass the laugh test.

Malibu Media's denials do not pass the smell test, and any denial of improper motive by its counsel does not pass the laugh test. For the reasons described above, there exists no good basis upon which a reasonable attorney -- subject to the ethical rules and restrictions of Rule 11 -- could conclude that attachment of Exhibit C to a complaint "for evidentiary purposes only" served any legitimate purpose at that stage of litigation.

Later, the judge acknowledges that copyright trolling cases "already give off an air of extortion" and uses that to claim that making that situation even worse with things like Exhibit C makes the whole effort sanctionable. Unfortunately, the judge then limits the sanctions to just $200 per case (there are 11 related cases) for a total of $2,200, and then actually lets the cases move forward (they had been stayed while this issue was resolved). It's at least something, and shows yet another dirty trick from a copyright troll, and how Rule 11 sanctions can be used against such activities -- but it's hardly a game changer. Since it seems likely that they've used Exhibit C elsewhere, however, it seems likely this will come up again.

However, given some of the other things that Malibu Media has been accused of doing recently, you have to wonder if Malibu and Lipscomb are on their way down the Righthaven/Prenda trail of more and more courts realizing what they're up to.

Filed Under: copyright troll, exhibit c, intimidation, keith lipscomb, rule 11 sanctions, sanctions
Companies: eff, malibu media