Copyright Troll Malibu Media Demands Comcast Tell It What Content Subscribers Accessed Online

from the chutzpah dept

Remember Malibu Media? That's the copyright troll that has run into some trouble with some of its lawsuits lately and may be in for even more trouble. In November, we noted that they had very aggressively tried to argue that Verizon should shut up and hand over private info on subscribers after Verizon had pushed back on some subpoenas. It sounds like Malibu recently tried the same thing with Comcast... and Comcast has hit back hard. What's incredible is that the lawyers for Malibu Media are so clumsy or sloppy that they didn't even remove Verizon's name from the request. Comcast lawyers wasted little time in highlighting the many problems with Malibu Media's demands:

As a preliminary matter, there are several confusing elements in the Subpoenas that affect Comcast's approach to responding. First, the two 2088 Subpoenas instruct Comcast to designate the person(s) "who are the most knowledgeable about the subject matter categories set forth in Exhibit though there is no "Exhibit A" appended to either of the two Subpoenas that Comcast received in that case. There are, as identified elsewhere in those Subpoenas, "Schedules A and B" but no "Exhibit A." Moreover, the Schedule A attached to the Subpoenas does not set forth any subject matter categories, but rather identifies documents requested for production. Conversely, Schedule B sets forth subject matter categories. We accordingly assume that there is no "Exhibit A" and that the reference to Exhibit A (or Schedule A) with respect to subject matter categories should be "Schedule B" However, if there is an Exhibit A that happens to be left out, or this assumption is otherwise misplaced, please notify us immediately.

Second, the three Subpoenas' Schedules A and refer to "Verizon Internet Services" and to documents pertaining to Verizon (and, thus, not to Comcast). Of course, Comcast would not have any documents relating to Verizon or its Internet Services, nor could there be any person(s) at Comcast knowledgeable about such Verizon documents. We assume these references to Verizon were intended to identify Comcast, and respond below accordingly. But if that is incorrect, there would be no documents produced, and no deponent identified, for the separate reason that Comcast would not have any responsive material(s) or information related to Verizon records.

Of course, it's not just because of stupid mistakes by Malibu Media's lawyers that Comcast is standing up against the troll. Apparently the subpoenas are asking for a hell of a lot of info, including details about individuals' internet usage, which Comcast reasonably finds to be excessive.

More substantively, Comcast may not provide to any third party documents or information that include a subscriber's personally identifiable information without first ensuring compliance with the requirements of Section 631(c) of the Communications Act, 47 U.S.C. 551(c). That Section generally prohibits cable operators from disclosing such information without the subscriber's express written consent, and also imposes an affirmative obligation on a cable operator to "take such actions as are necessary to prevent unauthorized access to such information by a person other than the subscriber or cable operator." Id. 551(c)(1). Section 631(c)(2) provides three exceptions to the general ban on disclosing PII without the subscribers' express consent. Only one is applicable to your requests as you have not included any signed consents from the subscribers. Specifically, Section 631(c)(2)(B) states that disclosure is permitted "pursuant to a court order authorizing such disclosure, if the subscriber is notified of such order by the person to whom the order is directed."

We note that at a prior stage of this case you obtained a court order authorizing disclosure of PII for the individuals identified and named in Schedules A and to the Subpoenas. Indeed, the information gained in response to that earlier order allowed such identification of the subscribers in the present Subpoenas. But that court order only authorized disclosure of subscriber names and addresses, and MAC addresses. Schedules A and B to the present Subpoenas call for a great deal more than names and addresses; rather, they seek PII relating (among other things) to the DMCA record(s) for the identified subscribers, the identified subscribers' internet bandwidth usage, specific content watched or accessed by the subscribers, and bills and invoices relating to use of the service, which in turn would reveal the identified subscribers' viewing habits, service selections, costs paid, and other sensitive information. Moreover, some of the documents you seek also concern Comcast confidential and proprietary information on the operation of Comcast's network, and other document requests refer to subscriber service usage that Comcast does not track or monitor.

The letter goes on to note additional problems with Malibu Media's demands that someone from Comcast show up in court. It amazes me how some of these copyright trolls act at times, and their assumptions that big companies like Verizon and Comcast don't have lawyers.

Filed Under: copyright troll, fishing expedition, personal information
Companies: comcast, malibu media

Judge Tells John Steele To Stop Mass Suing Anonymous People For File Sharing

from the time-to-shift-courts dept

Divorce-lawyer-turned-mass-P2P-lawsuit-filer John Steele hasn't had much luck with his legal strategy (though, he has been able to shake some cash out of people who settle too quickly), getting shot down a few times for his fishing expedition. Apparently he filed another such suit earlier this month, only to realize that it had been assigned to the same judge who's been slamming him -- and Steele quickly tried to drop the case entirely. The judge, Milton Shadur, wasn't going to let Steele off the hook without yet another scolding, as highlighted by Ars Technica. Judge Shadur made it clear, yet again, that he does not appreciate Steele's legal efforts here, and does not want to see any more such cases. He does point out that Steele is free to "pursue the normal path of suing an identifiable (and identified) defendant or defendants" rather than the mass dragnet. Of course, this won't stop Steele, but it does seem likely that he'll just drop any cases assigned to Judge Shadur. Of course, if more judges follow Judge Shadur's lead, hopefully he'll quickly run out of courts to file these questionable lawsuits.

Filed Under: copyright, fishing expedition, john steele

Judge Slams Copyright Troll Lawyer John Steele's Latest 'Fishing Expedition'

from the another-one-down dept

The mass infringement lawsuit shakedown plan is looking shakier and shakier these days as more and more courts keep hitting back on these cases. More and more judges (with one notable exception) are recognizing that these lawyers are just using the court system to pressure people into paying up... and they don't seem to like it very much. The latest involves Chicago divorce lawyer-turned-porn P2P shakedown lawyer, John Steele. Steele has already had some trouble with judges buying his arguments. Steele is also the guy trying to set these lawsuits up as reverse class actions -- a strategy that failed miserably the first time around.

However, despite that loss, Steele has tried again for another reverse class action. Earlier, the judge denied Steele's motion for expedited discovery. Expedited discovery is a pretty standard thing that almost every court grants as a matter of course, but we've now seen a few courts in these mass infringement lawsuits refuse, after realizing the only purpose behind expedited discovery is to get the names/addresses of people in order to hit them up with settlement offers. In this case, the judge specifically ordered the court clerk not to issue subpoenas in the case, to stop Steele from getting the info he needed to pressure people into settling. Steele still pushed forward, trying to get the court to approve things so he could send out the subpoenas and get the names.

But the judge is having none of it.

In an incredibly short, but clearly well-thought out response (pdf) to Steele, Judge Harold Baker, makes it clear that he wants no part of this. First, he points out that IP addresses do not match up well with individuals, and even points to the recent story of a home being raided for child porn due to an open WiFi router, to highlight that an IP address does not show who's actually doing the downloading:

Moreover, VPR ignores the fact that IP subscribers are not necessarily copyright infringers. Carolyn Thompson writes in an MSNBC article of a raid by federal agents on a home that was linked to downloaded child pornography. The identity and location of the subscriber were provided by the ISP. The desktop computer, iPhones, and iPads of the homeowner and his wife were seized in the raid. Federal agents returned the equipment after determining that no one at the home had downloaded the illegal material. Agents eventually traced the downloads to a neighbor who had used multiple IP subscribers’ Wi-Fi connections (including a secure connection from the State University of New York). See Carolyn Thompson, Bizarre Pornography Raid Underscores Wi-Fi Privacy Risks (April 25, 2011), http://www.msnbc.msn.com/id/42740201/ns/technology_and_science-wireless/

The list of IP addresses attached to VPR’s complaint suggests, in at least some instances, a similar disconnect between IP subscriber and copyright infringer. The ISPs include a number of universities, such as Carnegie Mellon, Columbia, and the University of Minnesota, as well as corporations and utility companies. Where an IP address might actually identify an individual subscriber and address the correlation is still far from perfect, as illustrated in the MSNBC article. The infringer might be the subscriber, someone in the subscriber’s household, a visitor with her laptop, a neighbor, or someone parked on the street at any given moment.

But, much more importantly, Judge Baker notes the serious fear of chilling effects from these lawsuits, pressuring people to settle even if they are innocent, and even calls out one of Steele's other cases, where Steele has dropped a bunch of defendants who settled. While that may have been good for Steele at the time, Judge Baker uses it to point out that this appears to be Steele's business model, rather than a real legal situation, and he sees no reason to help Steele out in this fishing expedition to scare people into settling:

In Hard Drive Productions, Inc. v. Does 1 - 1000, counsel sought leave to dismiss more than 100 Doe defendants, stating that some of the Does had “reached a mutually satisfactory resolution of their differences” with the plaintiff.... Orin Kerr, a professor at George Washington University Law School, noted that whether you’re guilty or not, “you look like a suspect.” Could expedited discovery be used to wrest quick settlements, even from people who have done nothing wrong? The embarrassment of public exposure might be too great, the legal system too daunting and expensive, for some to ask whether VPR has competent evidence to prove its case. In its order denying the motion for expedited discovery, the court noted that until at least one person is served, the court lacks personal jurisdiction over anyone. The court has no jurisdiction over any of the Does at this time; the imprimatur of this court will not be used to advance a “fishing expedition by means of a perversion of the purpose and intent” of class actions.

Denied.

Filed Under: fishing expedition, john steele, reverse class action

Judge Not Impressed By Reverse Class Action Attempt In Mass P2P File Sharing Case

from the fishing-expedition dept

We recently wrote about an attempt by one of the growing number of mass P2P pre-settlement lawsuit lawyers, John Steele, to file a reverse of defendant class action lawsuit to try to get around the issue of misjoinder in combining a bunch of totally unrelated individuals in a single lawsuit. Typically, of course, class action lawsuits involve a class as the "plaintiff" not the defendant. It's not unheard of to have a defendant class action, but it is rare. Either way, the judge doesn't seem to be buying it. In a recent hearing the judge noted that the whole thing felt like a fishing expedition, and barred the court from issuing any subpoenas until an adversarial hearing was held. It's unclear who will represent the still anonymous "class," but hopefully the judge takes a note from another court and brings in experts like Public Citizen and the EFF.

Filed Under: class action, file sharing, fishing expedition, john steele, p2p, reverse class action

US Prosecutors Narrow Fishing Expedition On Newspaper Commenters

from the but-they're-stil-fishing dept

Last week, we wrote about how US prosecutors appeared to be going on a total fishing expedition, demanding all sorts of information from the Las Vegas Review-Journal about all of the commenters on a certain article, including their "full name, date of birth, physical address, gender, ZIP code, password prompts, security questions, telephone numbers and other identifiers." This seemed to be far overreaching, and we're glad to see many more mainstream news sources picked up on the story this week. It seems that all that public attention has caused the US attorneys to back down a bit, greatly narrowing what they're requesting to information about just two comments. Even then, some are concerned about this, and the ACLU has filed a motion to try to block even the release of the info on those two comments, citing the right to anonymous speech. However, the newspaper seems willing to hand over what little info it had, noting that it really doesn't have much info on the anonymous commenters anyway (and had deleted one of the comments already for violating its terms of service). Either way, it's good to see the US attorneys quickly back down from such an over-broad request.

Filed Under: anonymity, comments, fishing expedition, nevada, newspapers, us prosecutors
Companies: las vegas review-journal