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.

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Companies: comcast, malibu media

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Comments on “Copyright Troll Malibu Media Demands Comcast Tell It What Content Subscribers Accessed Online”

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Anonymous Coward says:

They are not used to dealing with lawyers, they are used to bullying laypeople. That’s why they look like complete retards when they do run into someone with even basic knowledge of the law. But even so, failing at copy and paste? I know it’s Fiore and Lipscomb, but this is something I would expect from John Steele and Prenda Law… I mean there is literally such a thing as global find and replace. The only real disappointment I have with Comcast’s response is that they conceded this may have been an error, I think it would have been more fun to play it straight and simply state they have no documents relating to Verizon and be done with it.

I thought John Steele would be the only troll stupid enough to try to bully ISPs, but I guess his shining example wasn’t enough to dissuade Lipscomb. These guys really are so full of themselves they don’t comprehend just how nasty life may get if they continue to antagonize Fortune 500 companies by threatening their business.

Baldaur Regis (profile) says:

It’s becoming more and more apparent that American media trolls are failing. This can only lead to a yet another outsourcing of a once vibrant industry, with American trolls – once the most feared on earth – fading into insignificance, hoping against hope to hear those 5 little words that would allow their laziness and ignorance to succeed: “There’s an app for that!”.

DannyB (profile) says:

So would this work?

I have a creative work under copyright. (The commercial value of said copyright is a different matter.)

So does this entitle me to go to $BIG-ISP and say:

I think one of your customers might have maybe infringed my copyright. Here is an IP address. Can you tell please tell me everything about your (soon-to-be-ex) customer:
* who they are
* where they live
* how much they pay you
* what they watch on Netflix
* what videos they watch on YouTube
* what shows they like on TV
* what merchandise they buy from Amazon
* what ebooks they buy from Google Play
. . . and anything else you would like to disclose to me about your customer, in violation of the law.

Copyright Trolls-R-Us, LLC

That One Guy (profile) says:

Re: Isn't a lot of that info useless?

Bandwidth usage could be used as an indicator that the customer is downloading a lot of stuff(of course they’d probably ‘forget’ to mention to the court that it could also be an indicator for countless other things).

Bills though? No idea, unless they’re trying to see who went for the more expensive subscription options, and thereby would have more money they can make a grab for.

Anonymous Coward says:

Re: Isn't a lot of that info useless?

They are doing this because they don’t have any actual evidence that links the IP address to a specific person, at least without going through the discovery process which will cost time, money and effort and also expose Malibu to discovery (see Malibu Media v. Jeff Fantalis, the defendant asked for and was granted discovery of tons of documents relating to Malibu’s operations, and they simply defied the court order, refused to provide the documents they were obligated by law to produce, and then paid off the defendant and ran).

John Steele’s baby troll Brett Langdon Gibbs has been pulling similar pathetic shenanigans in California courts. He makes all these claims about the putative defendants being in a particular demographic, being most likely to be the actual infringer because of this or that made-up claim, but they never provide any actual evidence. You should read one of his most recent filings in which he makes claims about Wi-Fi strength, etc. just a bunch of garbage because they don’t have evidence and don’t want to do the work that would be necessary to prove their cases.

Just trolls trying to create truthiness and circumstantial evidence because they don’t have real evidence.

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