Malibu Media Copyright Troll Wakes The Beast In Trying To Push Verizon Around

from the not-a-good-idea dept

While we have our issues with Verizon in other areas, the giant telco does have a strong history of protecting its users against crazy copyright trolling and other forms of attacks. Verizon led the way in fighting back against the RIAA when it started demanding Verizon hand over information on tons of customers before any lawsuits were filed. Verizon won. Without this big victory, the copyright trolling situation today would be much, much worse. Verizon has also been known to be on the side of good when the RIAA and MPAA push for extreme changes to copyright laws as well. So it's no surprise that it's now entering a key case in the US's biggest copyright troll, Malibu Media.

In a case before Judge Katherine Forrest in the Southern District of NY, things have not been going that well for Malibu Media. And, this may be surprising to some, given prior to becoming a judge, Forrest was one of the RIAA's lawyers in copyright lawsuits over online infringement. Yes, really.

As per usual, the FightCopyrightTrolls site has been doing a great job keeping tabs on this case, which started getting attention a month ago when the lawyers representing the (still anonymous) John Doe defendant called Judge Forrest's attention to Malibu Media's latest nasty shakedown trick. Earlier in the case, Malibu Media was granted discovery of the Doe's computers and couldn't find any evidence of the Malibu Media/Xart material. But rather than drop the case, Malibu Media's legal team did the standard trick of subtly threatening to embarrass/harass the Doe if he didn't pay up, by putting him through a litany of irrelevant questions designed to find out other people who know the Doe who Malibu Media might go after:

During the deposition, Malibu’s counsel propounded a morass of irrelevant questions concerning, inter alia, Doe’s educational background (including factual and technical details about the courses Doe studied), the identity and location of Doe’s family members, the identity and location of Doe’s employers years before the relevant period herein (including factual and technical details about Doe’s job roles and responsibilities), the location of Doe’s residences years before the relevant period herein, the existence of Doe’s resume/CV, identity and location of persons in Doe’s personal and social life. Indeed, Doe answered questions about two decades’ worth of his life. This line of questioning lasted for more than 2.5 hours. Doe’s testimony in response to these questions is not relevant or material to Malibu’s single cause of action for direct copyright infringement or any of Doe’s defenses.

[....]

Dissatisfied with the lack of evidence of infringement and existence of testimony denying same, Malibu’s counsel falsely accused Doe of destroying evidence and reiterated her intention to depose Doe’s significant other (wrongly identified by Malibu as Doe’s wife). In person, at the deposition, the undersigned reiterated Doe’s objection to producing Doe’s significant other and indicated that no evidence exists as to infringement by Doe, such that testimony from any other person concerning same has no probative value and would be pursued only for purposes of harassment. Malibu’s counsel reiterated Malibu’s intention to depose Doe’s significant other and potentially other parties.

[....] While Doe is cognizant of Malibu’s ostensible desire to conduct thorough discovery, it has become apparent that, in the absence of any evidence of infringement on Doe’s part, Malibu is conducting a fishing expedition and campaign of harassment by threatening to depose nonparty witnesses on irrelevant topics and to continue to depose Doe on same. In so doing, Malibu is attempting to prevent ultimate resolution in this matter by creating the false sense that evidence of infringement or wrongdoing exists.

Judge Forrest quickly sided with the Doe and against Malibu Media:

Protective order granted. Plaintiff may not subpoena neighbors or Defendant’s significant other based on the current record. As to the neighbors, Plaintiff would be engaged in a fishing expedition and/or harassment of defendant (by way of causing embarrassment/humiliation).

The issue in this is [sic] case is did this defendant download Plaintiff’s works — not anyone living in the apartments nearby.

As to Defendant’s significant other, the Court has read the transcript of the deposition. The testimony is that any use of this woman was on Defendant’s computer. There is no evidence that the computer has or had any of Plaintiff’s copyrighted works that I can see — thus, whether the girlfriend used the computer is irrelevant.

Malibu Media is not happy about this. It is both continuing to push the issue by arguing that the Doe should be "sanctioned" for "perjury" because its "computer forensic examiner has discovered that Defendant used military grade computer wiping software to delete material evidence from his hard drive" and it has asked to subpoena Verizon to try to continue its fishing expedition.

And, yes, now we've finally gotten to Verizon which appears to be fairly pissed off about Malibu Media and has made it clear that Malibu Media's subpoena attempt is not just "defective" but flat out ridiculous.

Here, Plaintiff has not demonstrated “good cause” for extending the discovery cut-off. Its subpoena suffers from multiple defects. It was served on the eve of the discovery cut-off without affording Verizon any meaningful opportunity to investigate the alleged facts. The subpoena was issued from this district but served in Texas and purports to command the appearance of Verizon’s representatives—who reside in or near Arlington, Virginia—to testify on six days’ notice in Texas, i.e., outside the 100-mile radius for commanding testimony of a witness.... And, the subpoena seeks information far beyond that contemplated by the Cable Communications Policy Act (“Cable Act”) as discoverable from an ISP — i.e., more than the name and address of the subscriber associated with an IP address, which Verizon already provided in response to an earlier subpoena in this action. Verizon objected in writing to the current subpoena within six days of service, yet Plaintiff has made no real attempt to address those objections.

At bottom, Malibu Media’s subpoenas impose a significant, cumulative burden on Verizon, while “us[ing] the offices of the Court as an inexpensive means to gain the Doe defendants’ personal information and to coerce payment from them.” K-Beech, Inc. v. Does, 2011 U.S. ...; see also Northwestern Mem’l Hosp. v. Ashcroft,... (rejecting argument that a subpoena causes no undue burden merely because “the administrative hardship of compliance would be modest,” but considering instead “the rash of suits around the country” and the publicity generated). Given the defects in the subpoena and other problems addressed herein, Verizon respectfully submits that Plaintiff’s request for relief should be rejected.

Many people have wondered why Malibu Media/Xart have not yet faced the same sort of crackdown as Team Prenda, and it seems likely that it's only a matter of time, and the right case -- with the right judge. Getting a big ISP involved in a case seems like the kind of thing that could finally tip the scales -- as it did in one of the key Prenda cases as well.

Filed Under: copyright, copyright troll, fishing expedition, katherine forrest, subpoenas
Companies: malibu media, verizon, xart

Court Lets Malibu Media Move Forward With Discovery In Copyright Case, But Blocks 'Speculative Invoicing'

from the a-more-careful-approach dept

Just recently, we noted that a court in Australia, clearly understanding the issues with copyright trolling, had blocked Voltage Pictures/Dallas Buyers Club from pushing out questionable "settlement" letters (i.e., shakedown letters) to subscribers -- and required a huge bond if the organization wanted to move forward. It appears that some US courts may be thinking along similar lines in an effort to stop copyright trolls from abusing the judicial system as a way to shake people down for money in a practice known as "speculative invoicing" (i.e., pay up or we sue you).

The world's largest copyright troll, Malibu Media, has been taking some hits lately, pissing off judges who appear to be catching on to the game that Malibu and its lawyers (mainly Keith Lipscomb) are playing. And now, one judge is taking something of a page from that Australian court, in "allowing" Malibu Media to move forward with a case, but with a ton of restrictions to try to avoid the pure shakedown aspect of the business model (ht to Raul for the pointer).

The judge, James Bredar, in Maryland, clearly understands what Malibu Media is hoping to do: get ISPs to hand over names and contacts of a bunch of people, so that it can start bombarding them with demands for money, along with threats to "reveal" the names of embarrassing porn titles it's accusing them of downloading in the form of a lawsuit. Judge Bredar is allowing the discovery process to go on, but with restrictions to avoid the standard out-and-out shakedown game of Malibu Media. First off, before any names will be revealed to Malibu Media, all individuals must be given a chance to quash the subpoena:

After having been served with the Subpoena, the ISP will delay producing to Malibu the subpoenaed Information until after it has provided the Doe Subscriber with

Notice that this suit has been filed naming the Doe Subscriber as the one that allegedly downloaded copyright protected work;b. A copy of the Subpoena, the complaint filed in this lawsuit, and this Order;c. Notice that the ISP will comply with the Subpoena and produce to Malibu the Information sought in the Subpoena unless, within 30 days of service of the Subpoena, the Doe Subscriber files a motion to quash the Subpoena or for other appropriate relief in this Court. If a timely motion to quash is filed, the ISP shall not produce the subpoenaed Information until the Court acts on the motion.

Also, Malibu Media will need to pay all of the ISPs' costs, including attorneys' fees, and then if the subscriber does not seek to quash, the ISP will hand over the names... but, Malibu can't start shaking them down. Instead, it needs to hold the information in a confidential manner, and can only use it to file a lawsuit if it thinks it has a case -- and, even then, the name of the individual will be blacked out.

Malibu shall reimburse the ISP for its reasonable costs and expenses, including attorney's fees, associated with complying with the Subpoena and this Order. On receipt of the Information from the ISP, Malibu must mark it as "Highly Confidential," and, in the absence of further order of the Court, may only use it to determine whether, pursuant to Rule 11(b), it has sufficient information to amend the complaint to name as an individual defendant the Subscriber. Unless otherwise ordered by the Court, Malibu, its agents, representatives, and attorneys may not disclose the Information received from the ISP to any person not directly involved as an attorney in representing Malibu in this copyright infringement action relating to the Information received, except as provided below. Any person to whom the Information or its contents is disclosed shall be required to sign an agreement to be bound by the provisions of this Order, enforceable by an action for contempt, prior to being informed of the Information or its contents. Any amended complaint filed by Malibu naming an individual defendant shall be filed so that the name and any specifically identifying information is redacted from the publicly available court docket, to be replaced by first and last initials only, with an unredacted copy of the amended complaint filed under seal.

More importantly: no shakedown efforts:

Malibu is prohibited from initiating, directly or indirectly, any settlement communications with any unrepresented Doe Defendant whose identity has been revealed pursuant to the Subpoena or deposition described in paragraph 4 above. Any settlement communications with an unrepresented Doe Defendant shall be initiated only as approved by the Court. On request submitted to the Court at any time by Malibu or the Doe Subscriber, whether represented or unrepresented, settlement shall be conducted under supervision of one or more Magistrate Judges designated by the Court for this purpose. Unless otherwise ordered by the Court, any settlement negotiations shall be subject to the confidentiality provisions of Local Rule 607.4. This paragraph shall not prevent Malibu from initiating or responding to a request for settlement communications with a Doe Defendant who is represented by counsel.

In other words, the court knows what Malibu is up to and will be watching closely. It will be interesting to see if Malibu Media actually follows through or just cuts its losses and moves on to other courts with less aware judges.

Filed Under: copyright, copyright trolling, discovery, james bredar, speculative invoicing
Companies: malibu media, xart

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."...

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.

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.

Filed Under: copyright misuse, copyright troll, matt guastaferro, seeding, unclean hands
Companies: malibu media, xart

Malibu Media Seeks Order Forbidding Defendants From Discussing 'Copyleft' Blog Content

from the cf.-circular-reasoning dept

Copyright troll Malibu Media would prefer the many courtrooms it uses as speculative invoicing middlemen to be free of disparaging statements. To that end, it has filed a motion that specifically asks that certain blogs not be brought up nor discussed nor quoted extensively from by the defendant or his counsel. (h/t to Raul)

The Court should preclude Defendant from referring to copyleft blogs for any purpose, including specifically references to fightcopyrightrolls.com and dietrolldie.com. Plaintiff expects Defendant may attempt to reference these blogs at trial in an effort to introduce unsubstantiated allegations against Plaintiff. The blogs target Plaintiff and its counsel with vitriolic hate speech and contain comments that are biased, slanderous, and prejudicial, and should not be referred to at trial for any purpose. “Many internet blogs commenting on this and related cases ignore the rights of copyright owners to sue for infringement, and inappropriately belittle efforts of copyright owners to seek injunctions and damages.” Malibu Media, LLC v. John Does 1, 6, 13, 14, 950 F. Supp. 2d 779, 781 (E.D. Pa. 2013).

Yes, we can't have sites that expose the immoral and illegal activities of copyright trolls exposing the immoral and illegal activities of copyright trolls, can we? We'll just have to see what the judge has to say about this exclusionary motion. And in support of its allegations about the content of these blogs, Malibu Media cites a friendly footnote from one of its rare wins [p. 2] -- a derogatory phrase penned by Judge Michael Baylson and co-opted in its entirety by Dallas Buyers Club for use in its threatening letters to alleged infringers.

Rather hilariously, Malibu Media uses an infrequently-used term to describe these blogs, in an equally-sad attempt to appear evenhanded.

Plaintiff, Malibu Media, LLC (“Plaintiff”) by and through undersigned counsel, hereby moves for the entry of an order precluding Defendant Michael Harrison (“Defendant”) and his counsel from referring to copyleft blogs at trial for any purpose...

Sensing the court may not be familiar with the concept of "copyleft," it is more fully described in the attached footnote:

“Copyleft” is the polite way of describing an anti-copyright ideology. “Freetards” is the degrading equivalent of “copyright trolls” when used in association with copyright producers.

With this handy guide to the nuances of the copyright debate now on the record, the case can presumably proceed safely. According to Malibu, the blogs that have long tracked its legal efforts have "no probative value" and the mere mention of the forbidden sites may "provoke" jurors into browsing these blogs during their downtime... which obviously won't win Malibu any new fans favorable jurors.

All in all, it's pretty much a vindication of the efforts made by Fight Copyright Trolls and Die Troll Die. If these were nothing more than storehouses for hyperbolic statements and woodchipper discussions, it's highly unlikely Malibu would be attempting to preemptively banish them from court.

Filed Under: copyleft, copyright trolls, courts, freetard
Companies: malibu media, xart

Ohio Judge Fed Up With Malibu Media: Appears To Give Copyright Troll One Last Chance

from the pay-attention-now dept

With all the talk about Prenda and its copyright trolling practices, it's long been clear that the real king of copyright trolling in the US is Malibu Media -- better known as xArt -- and its legal team led by Keith Lipscomb (and we'll leave aside the fact that behind the scenes, it appears to be using the same German "international men of mystery" that other copyright trolls, like Voltage Pictures have been using). Either way, Lipscomb's shakedown campaign accounts for an astounding percentage of copyright lawsuits filed in the US these days. And, given some of the stories that have come out in these lawsuits, it's kind of astounding that the company has not received the "Prenda treatment" from any federal judges.

That may be about to change. Federal district court judge Timothy Black appears to have had enough of Malibu Media and its copyright trolling practices. In two separate cases this week, Judge Black issued "orders to show cause" (more or less judicial language for "I think you've done something really bad and here's your last chance to show me otherwise) that go beyond the usual level of "Hey, it appears you've been acting naughty" to a full blown recitation of all of Malibu Media's questionable practices.

Both orders (first one and here's the second) ostensibly focus on a common problem with Malibu Media's lawsuits: the failure to actually serve the defendants (when your main focus is just on getting identifying info to shake down people with threats that get them to settle, actually following official procedure required for an actual lawsuit falls by the wayside). And Malibu Media/Lipscomb/flunkies are notorious at screwing this up. In this case, Judge Black had already issued multiple orders to show cause over the issue. You can read about all the missed deadlines in the full filing, but Judge Black sees the problems here.

The much delayed filing of the summons return simultaneously forced the Court to unnecessarily expend judicial resources in the issuance of an Order to Show Cause and hindered the ability of the Court to manage its docket. With respect to the filing of an answer or other matters dependent on the date of service of process, the Court’s ability to actively manage its docket is entirely dependent on counsel filing a summons return within a reasonable amount of time.

But that's just the preamble. From there, Judge Black makes it clear he's well read up on all of Malibu Media's infamous shenanigans in gaming the judicial system for profit.

The Court does not view Malibu Media’s conduct in this action in isolation. Rather, the Court views it as part of an unmistakable pattern that has emerged in other actions before this Court and in context of observations made by multiple other federal judges in cases involving Malibu Media.

This Court has observed the conduct of Malibu Media and its counsel of record in over 60 cases filed in this District in the past twelve months. This is not the first case in which Malibu Media has filed a summons return well after the date of service. Counsel appears to have made a misrepresentation in seeking an extension of time to complete service in two cases. The Court also issued an order to show cause after counsel publicly filed a defendant’s name in direct violation of two orders unambiguously ordering counsel to file that information under seal.

We wrote about that public filing a few months ago. But that's not all that the judge has been watching. He's also well aware of the notorious "Exhibit C," where Malibu Media would file an "exhibit" of other movies that it believed the defendant may also have downloaded illegally -- even though it was not the copyright holder on those films. The titles were often very embarrassing, suggesting that the entire purpose of Exhibit C was to embarrass someone into settling so the list would not be associated with their name in court documents.

Judge Black also calls out the "swarm joinder" issue that was popular in early lawsuits -- whereby copyright trolls like Malibu (and others) tried to lump hundreds or thousands of individuals together in a single lawsuit, arguing it was proper to "join" them all since they participated in the same infringement. As Black notes, that misuse of the court system really only set the stage for a bunch of other questionable practices. It seems clear that Judge Black is well aware of the game being played, and even refers to it as copyright trolling:

Malibu Media asserts that it is necessary to invoke the Court’s subpoena power to “propound discovery in advance of a Rule 26(f) conference.” .... However, not a single one of these 60 cases has ever progressed to a Rule 26(f) conference. In fact, most cases are voluntarily dismissed by Malibu Media pursuant to Rule 41(a)(1)(A)(i) without obtaining a summons, but presumably after Malibu Media has used the third-party subpoena to obtain a settlement. The name of the IP subscriber is never provided to the Court in these voluntarily dismissed cases. This makes it impossible for this Court or any other court to determine, for example, if a later action should be dismissed with prejudice under Rule 41(a)(1)(B). In the few cases in which a defendant has appeared with counsel, counsel have raised numerous allegations of impropriety and abusive litigation tactics. The Court is not blind to the reality that these allegations likely substantially underrepresent the amount of misconduct that goes unreported by defendants who simply pay Malibu Media’s settlement demand rather than face the prospect of expensive and extensive litigation regarding their purported interest in pornography.

The Court is aware that Malibu Media, through separate local counsel, has filed thousands of similar cases in federal courts across the country. A copyright troll has been defined as “an owner of a valid copyright who brings an infringement action not to be made whole, but rather as a primary or supplemental revenue stream.” .... Under this definition, Malibu Media certainly qualifies. However, Malibu Media generally responds to this allegation by pointing to comments of the trial judge in the so-called bellwether trial as unassailable proof that its intentions and tactics differ from other entities that bring copyright infringement actions related to pornographic movies.

Oh right. The Bellwether trial. That case had all sorts of problems, including a lying defendant who tried to destroy evidence. Unfortunately, it did not do what it was initially intended to do: actually test some of Malibu Media's really questionable legal arguments. Judge Black quickly notes that the "bellwether" trial doesn't matter. Malibu Media is up to some really questionable judicial gaming. He walks through all of the abuses, from misjoinder to Exhibit C -- and even notes that despite being benchslapped over Exhibit C, Malibu Media just "evolved this practice":

Notwithstanding Malibu Media’s contention that it “instructed counsel nationwide to never file Exhibit C with a complaint again,” ... this Court has borne witness to the fact that Malibu Media has simply evolved this practice rather than eradicate it. In an Order issued in a separate case on October 6, 2014, this Court sua sponte noted a continued vestige of Exhibit C in several paragraphs of Malibu Media’s complaint.... Instead of attaching Exhibit C, Malibu Media adapted its practice and now made an explicit reference to a document with “additional evidence” that the defendant had distributed a large number of third-party files through BitTorrent.... Malibu Media disingenuously offered to produce this document to the Court with the seemingly off-handed remark that “many of the titles to the third party works may also be relevant to proving Defendant is the infringer because they correlate to the Defendant’s hobbies, profession, or other interests.” ... Citing the two Wisconsin district court cases that imposed sanctions for attaching Exhibit C, the Court struck the offending paragraphs from the complaint and ordered Malibu Media to file a conforming amended complaint forthwith.... Two months later, Malibu Media voluntarily dismissed the action without filing an amended complaint.

In discussing what to do about this, Black notes that, ordinarily, it's wrong to just dismiss a case to discipline "an errant attorney" since that would be unfair to the parties the lawyer represents. However, he notes that in this case, it's different. The sheer number of cases and the fact that Malibu/Lipscomb's games continue suggest that this is not just a bad lawyer not fairly representing the interests of a client. Oh, and it's clear Black knows that this is all being run through Lipscomb, rather than the random lawyers who actually turn up for local cases:

Here, and in the dozens of other actions before the Court, there is ample evidence that Malibu Media or its “outside general counsel,” rather than its local counsel of record selects the litigation strategy and tactics. 12 Accordingly, the general principle that “directly sanctioning the delinquent lawyer rather than an innocent client” may not apply here....

Still, Judge Black is incredibly patient. Despite the earlier orders to show cause, he once again gives Malibu a chance to explain itself. Though in the second of the two orders, Judge Black also lays out the possibility of "Rule 11 sanctions" against the lawyers for flat out lying to the court and failing to correct the record on it -- though again (perhaps surprisingly) suggests that the conduct to date is not enough to get there.

Here, the record indicates that on February 10, 2015, Malibu Media’s counsel represented that service had not yet occurred. (Doc. 10 at 2). However, it is clear that Defendant was served on January 26, 2015. (Doc. 12). Counsel made no attempt to correct this statement until after the Court issued an Order to Show Cause regarding the apparent failure to complete service of process.

It may be frustrating to those who are watching these cases that even this is not enough to bring down Rule 11 sanctions, but Judge Black has made it clear that he's watching -- and you can bet that other judges across the country may start to take notice as well. And assuming Malibu Media can't resist continuing to push things even further, the record of misconduct will be that much longer and more detailed.

Filed Under: copyright troll, copyright trolling, exhibit c, extortion, keith lipscomb, order to show cause, shakedown, timothy black
Companies: malibu media, xart

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

from the not-a-good-move dept

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.

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

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