Is Malibu Media About To Become The Righthaven Of Porn Trolls?

from the drop-the-bomb dept

Last month we wrote about an interesting case in which a judge effectively called the bluff of Malibu Media, a copyright trolling operation that has filed 365 lawsuits, targeting about 6,000 people. And, of course, it's never taken a single one to an actual trial, because that does not appear to be the goal. Instead, it's all about getting people to settle, and it sounds like Malibu has been successful on that front. In the case we mentioned last month, the judge made it clear that he wanted Malibu Media to actually go through a trial, and highlighted four defendants who had claimed innocence, and wanted to use those as a "bellwether" trial, to effectively test Malibu's theories. The judge, Michael Baylson, was pretty clear that he would not be happy if Malibu Media tried to squeeze out of the case.

At the beginning of the month, Malibu filed its "amended complaint" against the "John Does" in question, which gave up on some of the arguments in the original complaint and instead focused on direct infringement claims -- while also expanding the number of works infringed.

Yesterday, the Does hit back. It's interesting to note that they've signed up Marc Randazza (along with Jordan Rushie) to help them, as Randazza has both been on the other side of some porn copyright trolling cases and was also the lawyer largely responsible for bringing down the famed copyright trolling operation Righthaven. His work with porn studios to take part in similar cases has resulted in some worries of ulterior motives in taking on John Does in other cases, though that seems to be a bit paranoid.

Either way, the Does hit back hard. They're throwing the kitchen sink at Malibu Media. Among other things, they're claiming that the decision to expand the case to other possible infringements is ridiculous since the defendants use dynamic IP addresses, and Malibu is basing the other infringements on the same IP, but a totally different date or time. Also: the defendants claim that Malibu initially argued that all of the Does needed to be lumped together in a single lawsuit because they represented a "swarm" and as such had to be tried together. Except, in the amended complaint, they move away from that completely (no surprise, since the judge carved out just these few defendants). However, the defendants point out the inconsistency:
When considering litigating the “swarm theory,” Malibu was faced with the prospect of dozens of defendants, joined in their common defense against the plaintiff, with an initial seeder who very well may have had a license to publish the works to BitTorrent or elsewhere. When push came to shove, Malibu decided to dismiss more than eighty percent of the defendants it initially sued, despite its prior claims that the cases were brought against unified “swarms.” Malibu apparently thought better of the swarm theory, and decided to reduce the number of defendants. However, Malibu cannot properly abandon its foundational theory and still leave the case against Doe 13 intact. The swarm theory of liability relies upon a “swarm” of defendants and renders these now-dropped defendants indispensable to the action. Without even an allegation against the initial seeder, we have no idea whether Malibu itself seeded the relevant files. As Malibu does freely distribute the relevant films, it is entirely possible, if not most likely, that the initial seeder had permission to distribute the files via BitTorrent. If he or she did not, it is entirely likely that a participant in the swarm, from whom Doe 13 received the file, may have had such permission. Malibu’s omissions speak loudly in favor of dismissal. Unless Malibu re-joins these previous defendants, including the initial seeder, the Court must dismiss the action against Doe 13, who is by Malibu’s own theory incapable of according Plaintiff full and complete relief.
That paragraph has footnotes to point out that the company Malibu was using to obtain IP addresses, IPP (formerly Guardaley -- remember them?) is accused of actually seeding the files in the first place, which would suggest the copies were authorized. Of course, it's worth noting that Randazza, when on the other side of these cases, has used the swarm argument in the past.

Either way, that's just the warmup for the problems with the amended complaint. There's also a few other problems -- such as that it doesn't appear that Malibu legitimately owned the copyright in question. Oops. First, there's the fact that the filmmaker argued that the key film was a "work for hire" made for Malibu. Except, Malibu only came into existence in early 2011 and the movie was made years earlier. Malibu claimed this was an oversight in the registration process and then sought to register the copyrights properly just recently. However, again there are problems, as the assignment from the filmmaker failed to assign the specific rights under Section 106 of the Copyright Act, which are what you need if you want to sue. This was the critical defect in the Righthaven cases, in that they pretended to assign those rights, but it was in name only since the original copyright holder really retained all the key rights provided under Section 106. Furthermore, the defendants argue that the assignment statement does not really qualify as an assignment, and is, at best, a license.
In this case, the Assignment contains no provision of any exclusive rights from Field to Malibu Media. The assignment is silent as to what, if any, rights Field has within the films. Rather than transferring any discernible exclusive rights under Section 106 to Malibu Media, Mr. Field has executed what is essentially a quit-claim deed to Malibu Media, giving Plaintiff a jumble of unidentified rights (or perhaps none at all) that, on the face of the assignment, do not include the rights required to sustain an infringement action: exclusive rights under Section 106. Absent any indication that Field possessed full, undivided interest in the copyrighted works or exclusive rights therein, there is no basis on the face of the assignment for finding that Malibu Media acquired any exclusive rights and nothing in the assignment addresses past infringement.
Then they point out that even if the assignment is proper, it still doesn't help Malibu, because it is not clear when the assignment was made. And, under the law, while you can transfer the right to sue (along with other exclusive rights) for past infringements, that needs to be expressly stated in the assignment. That's not the case here.

Then there are other issues concerning the "swarm" argument. The defendants point out that if they were being sued as part of a swarm, the total awards across all the defendants can't surpass the maximum statutory rate. Yet with a bunch of defendants having settled, it's possible that Malibu has already been "made whole."
Malibu has already recovered significant funds in connection with the infringements alleged in the Amended Complaint. Prejudice against Does #6 and #19 before this action was set for a bellwether. (Dkt. Nos. 16 and 17). Presumably, this was because Malibu received adequate settlements from these defendants. In fact, Malibu may have received doubly-adequate settlements from them – in which case Malibu is now triple-dipping by seeking damages that have already been satisfied by third parties Malibu intentionally kept out of this litigation.

Because the swarm is global in scope, and the Plaintiff has likely already been made whole by other undisclosed swarm members, nothing short of full disclosure and setoff would allow Doe #13 to evaluate Plaintiff’s ability to bring this action that it repeatedly claims to be based on the uploading and downloading the exact same file. Since the Plaintiff seeks statutory damages, if the Plaintiff has already collected the statutory maximum for this work from other defendants, then the Plaintiff must stop visiting the well. Malibu filed Notices of Voluntarily Dismissal with
Thought they were done? Not yet. They also claim that Malibu is abusing subpoena powers outside of what was alleged in the complaint. In the amended filing, Malibu notes that its "partner" in identifying infringement, IPP, passed along the info that at least one of the Does has been accused by another IPP customer of infringement as well. As the defendants point out, that's completely irrelevant to the case at hand:
Nucorp, Ltd. is not a party to this action or any other action against Doe #13, and this allegation is scandalous and impertinent. Furthermore, set forth in more detail below, adding allegation also violated two court orders forbidding Malibu from abusing its subpoena power for purposes outside of what was alleged in the Complaint. Accordingly, Paragraph 53 and Exhibit “F” of the Amended Complaint should be struck .
In one of the other Motions to Dismiss, questions are also raised about whether or not Malibu has the proper and necessary licenses to do business in Pennsylvania where the lawsuit was filed.

There's more, but you get the idea. It certainly looks like some are trying to give Malibu the Righthaven treatment. And we all remember how that went...


Reader Comments (rss)

(Flattened / Threaded)

  •  
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    Mason Wheeler, Nov 21st, 2012 @ 12:48pm

    Is it even copyrightable?

    What happened to that case a few months ago that got reported on here, where the defendant went after the premise itself, stating that the claim itself is invalid because pornography is not copyrightable as it has no artistic merit? Did that end up going anywhere?

     

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      sophisticatedjanedoe (profile), Nov 21st, 2012 @ 1:18pm

      Re: Is it even copyrightable?

      There was more than one case where the copyrightability of porn was questioned: both by judges and defendants. The closest call was in the Fantalis's case (which is settled on Friday). Randazza even filed an amicus curiae brief on this case. Why it was the closest? During the last hearing, Judge Hegarty clearly stated that if the jury found any of the “works” to be obscene, these “works” would not be subject to copyright protection.

      But as I said, the case settled right after that: Fantalis moved too close to the foundation of Malibu's house of cards and threatened its destruction.

      Nothing interesting happened in other cases that brushed the copyrightability of porn, yet the idea is still in the air, and if trolls push harder with their assault on the society, they may find that the toy (copyright protection) given to pornographers may be taken back for abuse as adults take back toys from toddlers who misuse them.

       

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      Marc John Randazza (profile), Nov 21st, 2012 @ 1:27pm

      Re: Is it even copyrightable?

      This is one of the dumbest defense arguments anyone could raise.

      When you think about these cases, think about them rationally. To make it pretty simple: Copyright is exclusively a federal issue. That is why you have to bring copyright claims in federal court. The reason being that you don't want copyright protection to vary from state to state.

      Obscenity is a purely local community standard. What is "obscene" in Bibleburg, Mississippi might be completely run-of-the-mill in Las Vegas or Miami.

      So, you can't have copyright protection as a patchwork of being protectable in one place, but not another, and over that hill, yonder, it is protected, but not here in this neighborhood.

      To give you the tl;dr version: http://randazza.files.wordpress.com/2012/08/doc-38-1-proposed-amicus.pdf

      Anyone who espouses the theory that copyright protection has any relationship to obscenity is a) uneducated on the law, b) lacks the simply ability to use Google c) is so abjectly fucking stupid that they should be sterilized to keep more idiots from populating the earth.

       

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        Machin Shin (profile), Nov 21st, 2012 @ 1:42pm

        Re: Re: Is it even copyrightable?

        While yes I will give in that what is "obscenity" varies from place to place I think you will have a hard time finding many people to agree that porn is "useful art". I'm sure you will find some lonely basement dwellers, but for the most part everyone agrees that porn is not art.

         

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          Marc John Randazza (profile), Nov 21st, 2012 @ 2:00pm

          Re: Re: Re: Is it even copyrightable?

          Machin Shin,

          I think you might not understand the meaning of "useful art" in the context of the Copyright Clause.

           

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          Mike Masnick (profile), Nov 21st, 2012 @ 4:41pm

          Re: Re: Re: Is it even copyrightable?

          While yes I will give in that what is "obscenity" varies from place to place I think you will have a hard time finding many people to agree that porn is "useful art".

          Useful art, in the Constitutional context, refers to inventions and the patent system, not copyright.

          Copyright was for "science."

           

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          G Thompson (profile), Nov 21st, 2012 @ 6:27pm

          Re: Re: Re: Is it even copyrightable?

          Of course it's USEFUL.. without porn the Video Player (VHS or BETA), 8mm Camera, or Internet would not have sold like they did.

          Though on a more serious note: define art and more to the point define pornography. The community (not legal - which is freakin ambiguous in the extreme) definition keeps changing as community mores and values change. What was pornographic 200, 100, 50, 20 yrs ago is not pornographic today for the reasonable person. the Statue of David at one time was considered pornographic (and I'm led to believe some moronic idiots still think it is) but isn't today.. so Is David art? or only now is it art? who decides and how do you tell?

           

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          sophisticatedjanedoe (profile), Nov 21st, 2012 @ 9:19pm

          Re: Re: Re: Is it even copyrightable?

          Still waiting for some defense attorney argue that porn is not copyrightable, but for entirely different reason: because it is 100% Scènes à faire. THAT would be fun.

           

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            G Thompson (profile), Nov 21st, 2012 @ 11:40pm

            Re: Re: Re: Re: Is it even copyrightable?

            Ah the money shot, the pool boy, the moustache, the cheesy music!


            Bwhahahahahahaha I hereby claim the film rights to the court room hearing of it all LOL

             

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        sophisticatedjanedoe (profile), Nov 21st, 2012 @ 2:31pm

        Re: Re: Is it even copyrightable?

        I'm sure judges Hegarty, Moreno and others can't wait to be sterilized. (Can we somehow smuggle Beryl Howell to the van?)

         

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        G Thompson (profile), Nov 21st, 2012 @ 6:18pm

        Re: Re: Is it even copyrightable?

        Whereas I actually agree with you that Copyright should absolutely apply to pornography, I was always lead to believe that though different states had different 'obscenity' interpretations (with exceptions being Alaska, Hawaii, Montana, New Mexico, Oregon, Vermont, West Virginia - though that might be old info) due to your 18 USC Chapter 71 obscenity itself therefore a US Federal matter too.

        Though you then have the problem of trying to define what "Prurient Interests" *eyeroll* means in this day and age especially remembering that Miller & Roth especially were decades ago and mores (hopefully) have changed somewhat.

        Other than that good luck to both you and Jordan and the Does in this matter. And wishing you and your family a great Thanksgiving - take a break, think about nothing, and have a beer on me. ;)

         

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    Atkray (profile), Nov 21st, 2012 @ 12:48pm

    Oh goody!!
    brb
    Off to Costco to get some more popcorn.

     

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      That Anonymous Coward (profile), Nov 21st, 2012 @ 3:42pm

      Re:

      Sooo much popcorn lately...
      But hey we found a new revenue stream for the poor popcorn farmers so they don't need super IP laws to protect them now.

       

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  • This comment has been flagged by the community. Click here to show it
     
    identicon
    out_of_the_blue, Nov 21st, 2012 @ 12:53pm

    I've taught you how to spell "bellwether"!

    My work here is finished. -- But I'll be back within an hour. Try to have a more interesting post than this.

     

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      Rikuo (profile), Nov 21st, 2012 @ 1:34pm

      Re: I've taught you how to spell "bellwether"!

      "Try to have a more interesting post than this."

      I honestly and full-heartedly believe it is very difficult, if not actually impossible, for Mike to have a post more interesting than this, simply because this article is itself very interesting and well worth the read.
      So in a very round-about way, you are actually encouraging Mike to push himself harder, to excel in what he does best. I'm sure he must be very grateful.

       

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    sophisticatedjanedoe (profile), Nov 21st, 2012 @ 1:05pm

    Righthaven, Randazza, Fraud....

    To preserve the fairness, it was not Marc Randazza who discovered the fraudulent MM copyrights. It was a Michigan attorney Jeffrey Thennisch — back in July.

    Raul reported about it 10 days ago: Malibu Media’s Massive Fraud.

    As for Randazza's involvement, I decided to keep my opinions and emotions tamed for the time being. If it happens that I was, as Mike put it, "paranoid," I will be happy to admit it: I'm not here to tickle my ego. Yet I don't trust this man: he brought too much misery to ordinary folks' families, and I'm not ready to brush it off, even if his involvement in the bellwether trial happens to be effective.

     

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      That Anonymous Coward (profile), Nov 21st, 2012 @ 3:40pm

      Re: Righthaven, Randazza, Fraud....

      The enemy of my enemy might still be an ass, to paraphrase.

      While seeing pookies name annoys me to the core, what this particular case has its focus on is correct. We all know there is no love lost between him and I, I expect to continue doing battle with him in the future, but today he appears to be on the correct side of the fight. Much like his battle against the "lawyer" elsewhere, I believe in that fight and assisted my "sworn enemy" because the cause is important.

      Another time, in another arena, we will clash again.

       

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    Gwiz (profile), Nov 21st, 2012 @ 1:23pm

    Typo Alert: ...famed copyright rolling operation Righthaven...


    I always figured they were smoking something, but would have guessed it would have been in a bong.

     

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    identicon
    anonymous, Nov 21st, 2012 @ 2:01pm

    Like Righthaven, it would be nice to see these people pay for their abuse of the legal system.

    Let's see 6,000 "defendants" @ $350 = $2,100,000

     

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    That Anonymous Coward (profile), Nov 21st, 2012 @ 3:45pm

    I look forward to the courts ruling against MM, and shredding the tissue paper used to try and protect the assets with a sham corporate veil.
    While they have managed to offshore much of the cash in a tax haven designed to help hide assets and make recovery very difficult, I'm sure the courts would NEVER look at the principals involved in this shakedown scheme and make them weep. But sometime I fib.

     

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