Judge Calls Copyright Troll's Bluff

from the well,-this-could-be-interesting dept

We’ve pointed out many times that copyright trolls never seem to have any interest, whatsoever, in having a case actually go to trial. The whole point of copyright trolling is just to use the power of the judicial system to scare people into settling and just paying. A number of judges have called them out on this in tossing out the lawsuits and preventing the trolls from going through with discovery to learn the identify of account holders based on IP addresses. However, a district court judge in Pennsylvania has decided to call a troll’s bluff and more or less are forcing them to actually go through with a trial, something that so far every copyright troll has avoided. Judge Michael Baylson recounts the basic trolling strategy, noting that the plaintiff in this case, Malibu Media, admits that its entire goal is to get the contact info of people for the purpose of sending them demand letters. They even admit that if they don’t hear back, they drop the case.

If the John Doe defendant refuses to settle, or Plaintiff has been unable to serve the complaint within the 120 days required under Rule 4(m) of the Federal Rules of Civil Procedure, subject to any extension granted by the court, with whatever information is provided by the ISP, Plaintiff dismisses the complaint against that defendant without prejudice to Plaintiff’s ability to commence a subsequent action against that defendant. In this fashion, Plaintiff has initiated hundreds of lawsuits in various district courts throughout the country, but has not yet proceeded to trial in any case.

The judge talks about a small group of (anonymous) defendants who have fought the case. He goes through a similar analysis as other judges about whether or not the joinder of so many defendants makes sense, and whether or not the process of never following through to trial makes sense. Like many other judges, he’s concerned:

…the joinder of multiple John Doe defendants could very well lead to litigation abuses. The purpose of the joinder rules is to promote efficiency, not to use federal district courts as small claims collection agencies, by putting economic pressure on individuals who do not have substantive liability.

However, rather than just dismantling the cases and blocking discovery, Judge Baylson has decided to hold a “bellwether” trial involving just the five users who challenged the subpoena, to test the claims of the troll, Malibu Media — and then notes that if it sees Malibu Media continue to act like other trolls, “picking off” individuals for confidential settlements, “the Court may draw an inference that Plaintiff is not serious about proving its claims, or is unable to do so.”

The bellwether trial, then, will test Malibu’s claims in court and see how well they do in front of a judge… for the first time for this type of copyright troll:

…the Court assumes that Plaintiff will welcome this opportunity to prove its claims…

That said, the court notes that it may seem unfair to “punish” the people who fought back and put all the others on hold, but notes that, given the circumstances, this makes the most sense:

The Court also acknowledges that the five John Does who will be defendants in the Bellwether trial are, in a sense, being penalized for filing motions challenging the third-party subpoenas presently at issue, given that all proceedings against the remaining John Does will be stayed until further order of the Court. In the Court’s view, however, under the present circumstances, this is the fairest and most efficient means of resolving these actions. These defendants have objected to Plaintiff’s strategy and two of them have filed declarations asserting that Plaintiff’s claims are false. A Bellwether trial is the best means of testing the viability of Plaintiff’s claims, as well as Plaintiff’s sincerity in pursuing them.

And, of course, he notes that should Malibu’s case fail, they’ll have some remedies as well:

In the event Plaintiff’s allegations cannot be sustained, the five John Does will have adequate remedies to recover most, if not all, of these litigation expenses and/or damages from Plaintiff, such as a Rule 54 motion for costs, a lawsuit for abuse of civil process, a Rule 11 motion for sanctions, and a motion to recover excessive costs under 28 USC § 1927. More fundamentally, as mentioned above, because this is a copyright case, a successful defense will likely result in an award of attorney’s fees to any John Doe who prevails…

In other words, these defendants really will need to prove that Malibu’s evidence is weak, but if they succeed, the copyright trolling strategy could be in trouble. This case suddenly becomes a key one in the whole copyright trolling area — and as such, I imagine that we’ll see some interesting folks take an interest in the case. We’ll certainly be watching it closely.

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Companies: malibu media

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Comments on “Judge Calls Copyright Troll's Bluff”

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DannyB (profile) says:

Re: Re:

But, if the judge were a pirate apologist, then wouldn’t the judge try to prevent the copyright troll plaintiffs getting their day in court? Instead, he’s insisting that they have their day in court.

I would say that this judge is the opposite of a pirate apologist.

This judge is actively helping the plaintiffs by providing guidance to future copyright trolls so that they know what NOT to do, ala Righthaven.

Some Other AC (profile) says:

Re: The real point of pain

I believe he is presenting multiple options for pay out from Malibu Media should they lose.

“In the event Plaintiff?s allegations cannot be sustained, the five John Does will have adequate remedies to recover most, if not all, of these litigation expenses and/or damages from Plaintiff, such as a Rule 54 motion for costs, a lawsuit for abuse of civil process, a Rule 11 motion for sanctions, and a motion to recover excessive costs under 28 USC ? 1927. More fundamentally, as mentioned above, because this is a copyright case, a successful defense will likely result in an award of attorney?s fees to any John Doe who prevails…”

In the above from the article, it includes legal fees/costs, at least 2 possible sanctions(fines), a lawsuit option and option to recover excessive costs. Just for the five defendants this could get expensive very quickly for Malibu…

Anonymous Coward says:

i dont see why there should be too much emphasis on the accused defending themselves, proving innocence, as on the plaintiff proving guilt! if all they have is, as suspected, IP addresses but no photos of the accused in front of the relevant pc starting a torrent off and then seeding after completion of a download, that is pretty poor evidence to give a conviction on

That Anonymous Coward (profile) says:

Re: Re:

Because the standard in a civil matter, is more likely than not.

It is likely that some of the Does identified are infact the people paying for an internet connection.

It is possible that connection was used by “someone” to infringe on this pron, but that someone could be anyone within a radius of the router not just the Doe.

Its a hard case to prove what device and person was using the connection. Often the troll just wants to shame payments out of people by threatening to connect their name to scandalous porn titles. This lead to the introduction of the “negligence” claims being tacked onto some of the troll lawsuits, claiming people who pay for a connection owe a duty to random company they never heard of to protect their valuable IP. That tugboat has been sunk in several courts now.

It is not a matter of the Does having to prove innocence so much as it is showing how an IP =! a person, and that the lawsuit and settlement letters are not about getting justice but getting cash.

Anonymous Coward says:

Re: Re:

So far, it seems that it is Malibu Media who is afraid to step into the arena:

“…the plaintiff in this case, Malibu Media, admits that its entire goal is to get the contact info of people for the purpose of sending them demand letters. They even admit that if they don’t hear back, they drop the case.”

average_joe (profile) says:

Re: Re: Re:

Simple, because they probably are infringers and settling is far less risky and expensive. I don’t think they’ll want the plaintiff’s technicians poking around their computers. And they certainly won’t want a jury assessing statutory damages–plus their attorney’s fees, the plaintiff’s attorney’s fees, costs, etc. If a defendant actually did the infringement, settling makes a lot more sense than litigating and losing.

Dark Helmet (profile) says:

Re: Re: Re: Re:

“Simple, because they probably are infringers and settling is far less risky and expensive.”

So sayeth Average Joe, omnipotent seer? They’ve already shown that they’re willing to engage the legal system to fight this. Your version of Occam’s Razor says that’s most likely because they’re guilty? What the hell?

Milton Freewater says:

Re: Re: Re: Re:

“If a defendant actually did the infringement, settling makes a lot more sense than litigating and losing.”

But if they didn’t, litigating makes more sense, which is “probably” why they are litigating. Derp.

More importantly, “not guilty” does not mean you didn’t do what they think you did. It means they can’t establish that the court should punish you for it.

Essentially, “infringement” as the defendants define it may not exist in the eyes of the law. “Infringers” have an enormous incentive to pursue a court ruling. It’s expensive, but justice is expensive, and it’s not all that risky.

Ninja (profile) says:

Re: Re: Re:3 Re:

I expect Malibu to present IP addresses as evidence and the few defendants that actually presented how IPs can be spoofed, wireless connections security broken and open wi-fis… used by any1… will put this ‘evidence’ to shame. Likely are infringers? So you are telling me that the activity is so mainstream to the point you can assume they are infringers? Nice.

Franklin G Ryzzo (profile) says:

Re: Re: Re:3 Re:

What makes you think it’s so likely they are infringers?

Are you also confident that the deceased old man, the network printer, and the grandmother with no computer were all infringers too?

Your track record so far has shown that you will always back the plaintiffs regardless of how weak their case is, so you’re comments, however misguided and grounded in denial, come as no surprise.

Average Joe isn’t a very good moniker for you… Common Joe would be more accurate.

Mr. Applegate says:

Re: Re: Re:3 Re:

“The legal presumption is that they are not liable for infringement. I don’t think the plaintiff will have any trouble overcoming this presumption.”

Then, why EXACTLY would the plaintiff NEVER choose to go to trial if the Defendant chooses not to pay or respond?

I mean if the Plaintiff’s case is that strong, and there is that much money to be made, they most certainly would choose to pursue everyone they could locate. However, it is stated in the article that the plaintiff admits they have no intention of going to trial.

Your logic is seriously askew, at least based on the facts as presented in this article.

average_joe (profile) says:

Re: Re: Re:4 Re:

Not going to trial is their business model. I don’t think they avoid trial because they’d lose on the merits. They avoid it because it’s expensive, difficult, and time-consuming.

The fact that litigation is cost prohibitive isn’t the plaintiff’s fault. It’s the fault of the thousands of defendants who gang up on the one plaintiff. Think of it this way, if thousands and thousands of people were violating your rights, would you have the resources to fight each one in court one-on-one? Of course not.

average_joe (profile) says:

Re: Re: Re:6 Re:

I’m only speculating that there are so many thousands of defendants violating the plaintiff’s rights that the plaintiff doesn’t have the resources or ability to actually engage each defendant one-on-one. That doesn’t mean it’s not about rights violations. It is. There’s prima facie evidence that the subscriber of the IP address is an infringer. The settlement offers are being made in good faith.

Anonymous Coward says:

Re: Re: Re:7 Re:

It most certainly is wrong to ask for a settlement or face court when there is absolutely no intention for the sender of sending the receiver to court. This is called taking money from false prentensies. Taking money in a settlement with the pretense of being taking to court if no payment when there is no court action when no payment. Here in the UK there was a copyright troll doing exactly as this company was doing in sending out letters asking for a settlement or face court but never took anyone to court who didn’t pay and this company was charged and found guilty. The Judge may well rule in favour of the defendants because the plantiffs cannot show or prove that an IP address is the person who downloaded and its already been shown and proved in court that an IP address does not prove who the downloader was and also its been shown and proved in court that a person cannot be neligent for someone else if there system or wi-fi was used by someone else without knowledge so that argument wont work either.

Mr. Applegate says:

Re: Re: Re:5 Re:

That is VERY warped logic!

First of all if they have no intention of going to trial they shouldn’t be petitioning the court in the first place. The court is not a Private Investigator for hire.

Second, if they had a case they could use the winnings from one case to fund the next ten! Given some of the verdicts in similar cases they could probably fund the next 100 or 1000.

I work in a law firm and when you have a whole lot of the same type of case you can become quite efficient in running a case through the court. We routinely do a hundred or more at a time several times a month. And yes, our client does have and will use its resources to fight each and every one in court! Why? They have a case and they know it!

Since when is it OK to try to EXTORT money from anyone. Lest you think it is not extortion here is the legal definition: “The obtaining of property from another induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.”

sophisticatedjanedoe says:

Re: Re: Re: Re:

So please, please tell me how, for example 4:Twenty Media was wronged? The company was created in Seychelles with a sole purpose of purchasing one copyright to a movie of questionable legality ? Teen Anal Sluts, a movie that was never released for sale ? offline or online, and than suing 1300+ people in a Louisiana court, grossing orders of magnitudes more money in extorted settlements that such move would ever collect if sold. Yes, it is a business model, and it is not drastically different from the one Al Capone had.

Other examples are not this extreme, but still close.

Blameless victim plaintiff? You are a clown in an otherwise tragic play.

sophisticatedjanedoe says:

Re: Re: Re:3 Re:

Meet the plaintiff in this case.

Also note that Brigham Fields’ primary company is X-Art. “Malibu Media” was created with a sole purpose of running this extortion racket, a brainchild of Keith M. Lipscomb, who pays “wronged” party 10% of extortion proceeds for using its copyrights.

And if you want to meet paragons of ethics, attorneys representing Malibu Media, I’ll be glad to introduce them. Let’s start with Paul Nicoletti. Should I continue?

Karl (profile) says:

Re: Re: Re:3 "victims"

Are you suggesting that the plaintiff in this case is not a victim who has had his rights violated by many, many people?

They are not victims.

Here’s how Merriam-Webster defines “victim”:

a (1) : one that is injured, destroyed, or sacrificed under any of various conditions [a victim of cancer] (a victim of the auto crash) [a murder victim] (2) : one that is subjected to oppression, hardship, or mistreatment [a frequent victim of political attacks]
b : one that is tricked or duped [a con man’s victim]

Absolutely none of this applies in this case. If anything, it would be a better description for the defendants.

It is especially inappropriate when the “rights” that the plaintiffs have, are exclusively statutory rights (not human rights, natural rights, or innate rights); are granted by the very class of people they are suing (the general public); and exist solely to benefit that class of people. Completely unlike, say, anything in the Bill of Rights.

They are not victims. They are complainants in a civil lawsuit. Even if the allegations were true, it is pure hogwash (or, to borrow your oft-misused phrase, “FUD”) to claim that they are victims.

Karl (profile) says:

Re: Re: Re:5 "victims"

Huh? So you think the pirates

They are not “pirates.” They are people with an IP address the plaintiffs claim was used for piracy. They could be pirates; their roommates could be pirates; they could have an unsecured IP address; or the plaintiffs could simply be wrong.

Sweet. Can I “victimize” your property rights?

If those “property rights” are purely legal fictions; if they’re granted solely for the benefit of you and your buddies; and if that “victimization” results in no harm to me, and leaves me with the same use of the “property” that I had before… Then sure, go for it.

Also, “property rights” can’t be “victimized.” Only human beings can.

It’d be your fault that I chose to violate your right!

It’s not that it would be “my fault.” It would be that I’m not a victim. The fact that it’s totally your fault doesn’t change that.

If that exact same action could result in my benefit, and I choose not to make it benefit me… well, that’s certainly my fault. I wouldn’t be a victim either way, but in this case, I’d also be stupid.

I’m just a victim!

Look, let’s assume for the sake of argument that the people with those IP addresses are actually guilty. Even so, about the worst that could be said of them is that they did something ethically as bad as sneak into a movie theater.

Picture this. You get a registered letter in the mail. It says that someone fitting your description was seen sneaking into a theater a month ago. The people who sent the letter didn’t own the theater back then, but all the same, you’d better pay up $3000, or they’re going to sue. If you even want to prove your innocence, you’ll have to hire an expensive lawyer, take time off of work, and fly to a foreign state for a lengthy trial. And if you lose, you’re going to face up to $150,000 in damages, plus lawyer’s fees, on top of everything else.

If that happened, then yes, I’d call you a victim. Even if you actually did sneak into that movie theater.

Now, consider what it would be like if you didn’t sneak into that theater.

I don’t think any human being would consider this situation “justice.” Certainly the judge didn’t.

Mr. Applegate says:

Re: Re: Re: Re:

“I’m on the side of justice.”

That is laughable, you most certainly are not on the side of justice! You have taken a very one sided view and stubbornly held to it without providing ANY evidence to back up ANY of your claims.

“Defendants shouldn’t be able to shirk liability by simply ganging up by the thousands on a blameless victim plaintiff.”

And with this statement you show your true colors Mr. Troll.

Exactly, how did the defendants ‘gang up’ on the plaintiff?

There is no point in continuing this discussion with you as I do try not to feed the trolls.

G Thompson (profile) says:

Re: Re: Re: Re:

I’m on the side of justice.

Justice for whom? and you might state you are on the side of “justice” but it’s quite self evident you are not on the side of equity or procedural fairness.

Defendants shouldn’t be able to shirk liability by simply ganging up by the thousands on a blameless victim plaintiff.

WTF! So it’s ok for a plaintiff (and calling a plaintiff a ‘victim’ is the absolute wrongful and unethical wording unless proven which this ISN’T) to use its resources to join many (hundreds and thousands) of defendants without allowing them the opportunity to have there own day in court and instead ‘offer’ to basically turn a blind eye to ‘justice’ by accepting a small fee? hmmmm. based on your philosophy and equitable process the defendants should be able to pool there monies into One flat sum of say $3000 all at once and pay it to send the plaintiff on there way. See if they want to join defendants as ONE instance then they should be paid based on only ONE instance

Joe, your arguments just make no sense legal, logical, or otherwise.

DannyB (profile) says:

Re: Re:

Dear Mr. average_troll, I must respectfully disagree.

I think that these five defendants might be ones who specifically would prefer to litigate.

Over on ArsTechnica, I read:

Out of the dozens of John Does sued by Malibu in Eastern Pennsylvania, five have filed objections to Malibu’s subpoenas seeking their contact information. One of them filed a declaration specifically denying he had been trading files on BitTorrent. Another raised a number of legal objections to the subpoenas.

Since these five have, by their court filings, expressed an interest in the process, the judge might have picked them out for that reason. The reason being that they have expressed an interest in NOT settling.

G Thompson (profile) says:

Re: Re:

Well of course that is always a problem with these sort of things, though its somewhat telling how you can only state this as the only problem with this action by the judge.

I can likely guarantee that if even one of these Does does not settle the crapfight that will then be undertaken with discovery being ordered against the actual plaintiffs will be quite an interesting experience.

The plaintiffs might then actually under orders have to explain evidentially how there so call reliable and authenticated process of finding out IP numbers in the first place using “secret corporate forensics knowledge” (that the rest of the forensics world proves to be utter bullshit) actually works.

A LOT of interested parties are looking at this case in the legal, forensic, IT, and IP world now, though admittedly in the IP world (yours I believe) the emphasis is on “how the frick can we stop this from happening”.

Beta (profile) says:

blood on the sand

“Plaintiff has cried out for justice, and this Court shall oblige. Both sides will enter the arena, where I’m sure Plaintiff will be eager to display the courage and strength of which Plaintiff has boasted. Pity the poor Defendants, they’re really in for it. But if on the other hand, Plaintiff turns out to be bluffing, as everyone says and all the evidence indicates, then the Defendants will be in a position to… oh, I don’t know… maybe thrash Plaintiff to within an inch of his worthless life by means such as this, and this, and this, and maybe even some of THAT!… How’s Tuesday?”

out_of_the_blue says:

With you on view, except for spelling:

bellwether – n. 1. a male sheep, usually wearing a bell, that leads the flock 2. a leader, esp. of a sheeplike crowd 3. anything suggesting the general tendency or direction of events, style, etc.

No, this isn’t nitpicking. Don’t you EVER consult a dictionary or spell-check before using a rare word? You’ve NO excuse with it available instantly. — I do frequently! Though to be sure, sometimes I’m generous and intentionally make an error for nitwits to nitpick.

Gwiz (profile) says:

Re: With you on view, except for spelling:

No, this isn’t nitpicking. Don’t you EVER consult a dictionary or spell-check before using a rare word? You’ve NO excuse with it available instantly. — I do frequently! Though to be sure, sometimes I’m generous and intentionally make an error for nitwits to nitpick.

Umm. Yes it is nitpicking. Although what you are nitpicking isn’t really clear.


Rikuo (profile) says:

Re: With you on view, except for spelling:

What’s your point? The kind, mature thing to do would be to simply label your comment “Correction”, point out the spelling/grammatical error and move on, without having to insult the author.
But of course, I expect far too much from the likes of you. You truly live up to your name, hasn’t_got_a_clue. (That is your new name by the way, it describes you perfectly).

Anonymous Coward says:

Re: Re: With you on view, except for spelling:

I seriously think this fool comments here to look like a clueless idiot. I do believe it makes him feel better about himself. As yo why, I have no idea.

Maybe he has absolutely no self esteem and looking like a “tard”- my apologies to all the “tards” out there as associating you with him puts you in a bad light-is what he needs to attain the chubby he wants so he can fap to the comments telling him how utterly clueless his ass is.

I just don’t know.

Cory of PC (profile) says:

Re: With you on view, except for spelling:

Um, you should know that with today’s speech, it’s guaranteed that you’ll find hardly anyone using words by their original definition. There are many ways one word can be used for a different meaning, and some of these ways are picked up by the public and becomes a more popular use. Just because you’re complaining about someone using a word from its original definition doesn’t mean that the definition s/he’s using is wrong. There’s more to everything than just one source of information.

Hey, I prefer to use words by their original definition since I loathe slang, but I’m not going to waste all my time studying every single word in existence learning the original definitions. If anything… you’re just stupid.

Mr. Applegate says:

Re: With you on view, except for spelling:

Great, you can use a dictionary. Now look it up in a law dictionary.

bell?weth?er (blwthr)
One that serves as a leader or as a leading indicator of future trends

or perhaps:

Bellwether Case Law & Legal Definition

By definition Bellwether is an indicator of future trends. Courts utilize a bellwether approach when large numbers of plaintiffs are proceeding on the same theory or claim and there is no other feasible way for the courts to handle the enormous caseload. This approach has been used in many cases including asbestos litigation. A group of plaintiffs are chosen to represent all the plaintiffs. The issues for trial should concern common claims or theories among all the plaintiffs. These representative cases go for trial and the results act as the bellwether for the other plaintiffs? trials. The verdict from this grouping is extrapolated to the remaining plaintiffs? cases. The actual results may be utilized for valuing groups of claims in settlements. The plaintiffs can also choose to continue with their own individual trial.

Not that I am picking nits, but to further your information a little more bellwether is a term that is also used in the financial sector as well, it is not an uncommon term.

Anonymous Coward says:

Re: With you on view, except for spelling:

That’s so weird! How did you manage to read a dictionary when you can’t read the article? The term “bellwether case” was introduced by the court, not somebody on Techdirt.

BTW, you might want to try a legal dictionary when legal terms are involved. You’ll embarrass yourself less.

sophisticatedjanedoe says:

Morgan Pietz brings good news:

On October 10, 2012, United States District Judge R. Gary Klausner issued a Minute Order denying Malibu Media?s Renewed Motion for Early Discovery in all Malibu Media cases assigned to him in the Central District of California. What that means is that 33 of Malibu Media?s cases have bitten the dust, at least as to all Does other than Doe No. 1.

That Anonymous Coward (profile) says:

I think this will be fun.
Joe would have you think the Does should be terrified of discovery, he missed the idea that all of the IP gathering is done by a firm using a “super secret” technology that has NEVER been vetted in a court of law as being accurate.
It has never been peer reviewed, or had experts outside the company look at how it works.

If the program used to gather IP’s has a flaw, you do understand that every troll case sinks right?
You understand if it comes out that the firm gathering the IPs was seeding the file, that unclean hands comes to town.
One can not create an event to then profit from.
You understand that the courts are unaware that the gathering firms are not paid a flat fee for their work, but a percentage of each settlement giving them a reason to make sure they get more settlements.

There are lots of “questionable” things in the trolls playbook that if more Judges were aware of they would throw them out.
I think there should be criminal penalties for those trolls who falsified copyright registrations, or began copyright lawsuits for movies with no valid copyright.

Maybe when these 5 are done, all of the dirt will be out there.

In the meantime I think this case will make very strange bedfellows among the different troll groups. They all sink based on this case…

That Anonymous Coward (profile) says:

Re: Re: Re:

I’m putting odds on that being John Steele.
He claims SJD, DTD, Me and the others are all wrong… except he trolls the websites posting FUD and trying to scare people.

If he was so right why would he bother with us?
Maybe because he knows we are right, we are killing his extortion mill off 1 Doe at a time, and he is scared shitless.

average_joe (profile) says:

Re: Re: Re:

Troll is one who doesn’t champion due process.

Due process is not violated here. You guys love to throw out the “violates due process!” FUD, having learned to do so from your anti-copyright zealot leader, but none of you appear able to run through the analysis.

Pray tell, how is the Due Process Clause being violated here? Please be specific.

That Anonymous Coward (profile) says:

Re: Re:

Other than having damaging allegations against them made public doing irreparable harm to their reputation.

Everyone remembers when someone is an accused child molester, no one remembers the charges being dropped.

Since you posted as an AC and are trying to taunt me I will play the odds and suggest that you go sober up Johnny boy. You think you covered your tracks on twitter by removing the account, but we still have all of your posts.
How is running from the FL bar working out for you and your former minions?
Do you think you will do better in NV?

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