Copyright Trolls Go Mostly Silent In US Federal Courts

from the anyone-out-there? dept

Readers here will be familiar with the practice of copyright trolling and the toll this extortion by threatened litigation has had on the public and the court system. You will also be aware that a huge chunk of copyright trolling efforts in America have been undertaken by two companies: Malibu Media and Strike 3 Holdings. Both companies have had setbacks as of late, between ownership and investor issues, and a series of both losses in court and judges who are finally starting to catch on to the shady way these trolls attempt to extort money from people with scant evidence.

It is perhaps in part due to those struggles that both companies have essentially gone dark in federal courts as of late.

In recent years, the vast majority of the U.S. lawsuits were filed by two adult entertainment companies; Strike 3 Holdings and Malibu Media. Together, they filed over 3,300 new cases last year, which was an all-time record. Initially, it appeared that they would continue on the same course this year. During the summer we reported that Strike 3 alone had already filed over a thousand new complaints. However, in recent months that changed drastically.

Looking through the federal court records we noticed that there was a notable absence of new cases from both Strike 3 Holdings and Malibu Media. Instead of filing hundreds of new cases, both companies haven’t been active for weeks. Strike 3 filed its latest complaint in early August, more than four months ago. Malibu Media had its latest filing spree in August as well and only submitted seven new complaints after that, most recently in October.

This appears to be the full story with Malibu Media. Strike 3 is a different matter, however, as it looks as though the company has made a strategic decision to file its cases in Florida State court rather than federal court. This may have to do with an attempt to avoid precedence in rulings as to the evidence it uses, chiefly the practice of pretending that IP addresses identify people. If that isn’t it, it could also be some version of the trick Prenda Law attempted to pull in moving copyright-cases-in-disguise to Florida courts. Essentially, they sue instead with a nod toward the CFAA as a way to enter into discovery, while also naming a bunch of co-conspirators — rather than defendants — to the case. All of this as a way to get at IP address and account information for a whole bunch of people in state court, only to turn around and sue those same co-conspirators in federal court. If that is what Strike 3 is doing, it’s really dumb because it got Prenda in a bunch of trouble.

Either way, the total number of cases filed by these two companies combined, and thereby the number of copyright trolling cases in federal court writ large, have tumbled significantly. This should highlight that speaking out and pushing back on the tactics of these companies can indeed work. Or, at the very least, have an effect.

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Companies: malibu media, strike 3

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Comments on “Copyright Trolls Go Mostly Silent In US Federal Courts”

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30 Comments
Anonymous Anonymous Coward (profile) says:

Re: Re:

It may not be a happy holiday (or new year depending upon the timing) for those on the receiving end of those discovery requests, especially if they are not legitimate. As the saying goes, an IP address is not a person and IP addresses don’t get sued people do.

All they have are IP addresses and attempts to pull the wool over a state courts eyes, and all because the federal courts caught them out at that game. They just might get away with it, for a while at least.

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Stephen T. Stone (profile) says:

Re: Re: Re:

Yet IP addresses routinely prove internet threats and the source of defamation.

Please cite a single criminal case involving threats, or a single civil case involving defamation, where an IP address was the sole piece of corroborating evidence in a judgment favorable to the plaintiff.

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Anonymous Coward says:

Re: Re: Re:2 Re:

Please cite a single criminal case involving threats, or a single civil case involving defamation, where an IP address was the sole piece of corroborating evidence in a judgment favorable to the plaintiff.

Nice loophole, since after the ID is obtained, the other party has to admit or deny under oath, and usually admits. The "doe subpoena" wouldn’t exist if IP addresses were not reliable, and if other means of identification were possible.

I also said it was sufficient in CRIMINAL cases to establish threats that were made, and that’s definitely true as well.

That someone wants to deny the obvious to this extent is tantamount to forfeiting the debate.

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Stephen T. Stone (profile) says:

Re: Re: Re:3

Nice loophole

It’s not a loophole. But your saying it is makes for a nice excuse to sidestep the issue.

after the ID is obtained, the other party has to admit or deny under oath, and usually admits

But to what do they admit — that the IP can be traced to them, or that they committed the misdeed? The first answer does not make the second one a given.

The "doe subpoena" wouldn’t exist if IP addresses were not reliable, and if other means of identification were possible.

Which is the whole reason the MPAA and RIAA generally stopped relying on, and courts routinely dismiss or downplay, IP addresses as evidence: The person to whom an IP address is allocated may not be the same person who comitted the misdeed on that IP address. Since the IP address alone can’t prove it, plaintiffs need other evidence — hence my original request for a citation where a case didn’t need other evidence.

it was sufficient in CRIMINAL cases to establish threats that were made

But it isn’t sufficient to establish who made the threats. The prosecution must prove that to convict. An IP address alone doesn’t do that, and you have yet to cite one case where it has.

That someone wants to deny the obvious to this extent is tantamount to forfeiting the debate.

I accept your forfeit.

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Anonymous Coward says:

Re: Re: Re:4 Re:

after the ID is obtained, the other party has to admit or deny under oath, and usually admits

But to what do they admit — that the IP can be traced to them, or that they committed the misdeed? The first answer does not make the second one a given.

They have to commit perjury if the IP doesn’t trace to them.

IPs are routinely used to unmask criminal defendants, and have been used in many civil cases (like James Woods’s lawsuit, for example).

The burden of proof clearly shifts when an IP is traced to its owner (or whoever is renting it via their ISP or webhost).

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Anonymous Coward says:

Re: Re: Re:5 Re:

The burden of proof clearly shifts when an IP is traced to its owner (or whoever is renting it via their ISP or webhost).

You might have had a point if Guardaley and MarkMonitor’s tech wasn’t consistently so riddled with holes to the point where it’s not worth the cereal box it was fished out of.

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Stephen T. Stone (profile) says:

Re: Re: Re:5

They have to commit perjury if the IP doesn’t trace to them.

…fucking what

IPs are routinely used to unmask criminal defendants, and have been used in many civil cases

IP addresses are routinely used as part of a broader investigation in a given criminal or civil case, but they have never been the only evidence in such cases. You have yet to cite a case where they were.

The burden of proof clearly shifts when an IP is traced to its owner

No, it doesn’t. A plaintiff in, say, a copyright infringement case can say in court that they traced an IP address to a specific location — but that doesn’t give them the identity of the person who did the infringing. The person to whom the IP address was assigned could have done it, or it could’ve been anyone with access to a computer/tablet/phone and that person’s WiFi password (if they even had one).

I’ll repeat: Please cite a single criminal case involving threats, or a single civil case involving defamation, where an IP address was the sole piece of corroborating evidence in a judgment favorable to the plaintiff. I will treat any refusal or inability to make such a citation (and admit no such case exists) as a forfeit of this “debate”.

Johnny Shade (profile) says:

Re: Re: Re:4 "IP"

As a long time Tech (30+ years), it is obvious that, whoever that person is, they have no clue about how IP actually works. Unless you pay extra for a "static" IP address from your ISP, you receive a "Dynamic" IP address. What that means is that your IP address can change.
The issue with this kind of thing is that the plaintiff can’t just say "Here’s an IP address, who is it" They have to be able to provide a date and timestamp of the IP so that an ISP can correctly identify who that IP was assigned to at the precise date/time
As you so cogently noted, It takes more than an IP address.

Scary Devil Monastery (profile) says:

Re: Re: Re:5 "IP"

"The issue with this kind of thing is that the plaintiff can’t just say "Here’s an IP address, who is it" They have to be able to provide a date and timestamp of the IP so that an ISP can correctly identify who that IP was assigned to at the precise date/time"

And even when a date/time stamp is provided there’s still a large margin of error – demonstrated as 12-13% if we believe the old core study where they counted how many laser printers had received takedown notices in a university.

NAT being a thing you can’t even trust the dhcp lease stamp. Especially so if the addressee had been given a new lease before the old one expired, which isn’t exactly rare either.

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Scary Devil Monastery (profile) says:

Re: Re: Re: Re:

"Yet IP addresses routinely prove internet threats and the source of defamation. Those who claim an IP is not theirs need to make an affirmative showing."

Nope again, Bobmail. It’s the other way around – if you claim a given IP owner is defaming you then you need to demonstrate proof.

And that proof has to be better than "I’ve got a drawing of the getaway car made by a 5-year old" which is about what ip address "evidence" amounts to.

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Scary Devil Monastery (profile) says:

Re: Re:

"Well then without these two "trolls" it seems there isn’t much of an issue with copyright enforcement."

Except for most of copyright law which is what encouraged every struggling shit-rated lawyer previously chasing ambulances for a living to turn to a specialization marginally better than extortion at gunpoint.

Nice try, Bobmail, but yet again you fail.

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