Copyright Troll Malibu Media Sanctioned For Bogus Copyright Abuse & Intimidation Tactic

from the there-goes-another-one dept

For the last few months, I'd been meaning to write some more about Malibu Media, a major copyright troll who we've mentioned a few times in the past. Some have been arguing that (believe it or not), the company is even worse than Prenda. Of course, with so much other stuff going on, I haven't had as much time to dig in, but the company just got hit with some sanctions. A few months back, people realized that one of Malibu Media's tactics was to send a now infamous "Exhibit C" court filing to the subscribers they were accusing of infringing on their copyrights. The problem? The movies in Exhibit C -- which tended to be hard core porn films -- had no connection to Malibu Media. They didn't hold the copyright on them at all, and certainly had no standing to sue over them. Basically, Malibu would file this list of other movies the person may or may not have been sharing, with really offensive names, knowing that if the names became public it would likely be quite embarrassing for the recipients of the threat letters. It seemed pretty clear that the idea was to intimidate people into paying up. EFF summed up the situation a few months ago:
Malibu Media, which runs the site "x-art," files civil complaints in courts around the country. Each complaint accuses an anonymous Internet user of illegally downloading and sharing one or more of Malibu's movies. But the complaint goes further: Malibu attaches a list of other movies and files that Malibu accuses the user of copying illegally. Some of them have titles that are far more lewd and embarrassing than the titles of Malibu's own movies. But Malibu doesn't own the copyright in those other movies, and can't actually sue over them. There's no legitimate reason to attach that list of other titles to a complaint, because complaints in federal court are not the place for laying out evidence. They're just to initiate a case and let the other side know what the case is about. But adding some really embarrassing titles to a complaint and filing it on a public court docket ups the embarrassment factor and discourages innocent people from standing up for themselves in court. (It's not clear what those extra titles would add to a court case, anyway - most judges would bar them from being read to a jury.)
A court became suspicious of this, and ordered Malibu Media to explain. The company's main lawyer in these cases, Keith Lipscomb, was then quoted in a ridiculous filing in which he swore up and down that he had no intention to intimidate people with that bogus list at all. He was just... um... making his "case stronger." Yeah, that's the ticket...

It goes on to claim that Exhibit C, which (again) does not involve anything that Malibu Media holds a copyright on, and which they have no right to sue over, is part of the "breadcrumbs" that help solve the "whodunit." How, you might ask? Well, Malibu Media claims that all of the other non-Malibu Media content that they attach to the lawsuit helps establish who really did the file sharing, because that other content might just include other things associated with that person.

Of course, even if that's true (and it's incredibly weak as arguments go), it doesn't matter, because you don't file that kind of thing with the initial case. It's (at best) evidence that is presented during the actual case itself, not with the initial complaint. EFF thankfully jumped in and filed an amicus brief highlighting just how ridiculous Malibu Media's explanation was:
This is nonsensical. Complaints are pleadings, not affidavits, so they have no “evidentiary purpose.” Complaints are to provide “a short and plain statement of the claim showing that the pleader is entitled to relief.” .... Here, in each case, plaintiff is explicitly disavowing any claim based on Exhibit C. If it were to matter, under what rule of evidence would Exhibit C be relevant at any stage of this lawsuit? Propensity evidence is forbidden by F.R. Ev. 404(b)(1). Plaintiff makes no claim that Exhibit C is relevant under Rule 404(b)(2), and if it did, then the weighing process of Rule 403 would militate forcefully toward excluding this evidence. So what’s really going on here?

Even a cursory review of each lawsuit’s Exhibit C shows first, that it is always much, much longer than the short list of titles that is the actual subject of plaintiff’s lawsuit, and second, that among the innocuous titles listed in each Exhibit C (e.g., “Top Gear,” “Star Trek VI”) are numerous “adult” programs, usually many more than the handful for which plaintiff is claiming a copyright violation, and many with titles exponentially more lewd than any title claimed by plaintiff. Compare “Red Satin” with “[Bestiality] Young Blonde . . . Dog (www.sickporn.in).” One needn’t be a cynic to suppose that an intended purpose–perhaps the primary purpose–of Exhibit C to the complaint in each of these lawsuits is to increase the pressure on a subsequently identified Doe defendant to settle before s/he is publicly linked to hardcore/deviant titles that are completely irrelevant to plaintiff’s actual claims in the lawsuit.
Thankfully, the judge has now agreed and issued sanctions. The opinion more or less adopts exactly the points made in the EFF's filing. Judge William Conley also shreds Malibu's explanation for the filing, pointing out how each argument Malibu made makes no sense and could have been accomplished in other ways that don't lead to "extorting unreasonable settlements." As the Judge says:
Nothing is gained by filing this document publicly in unredacted form, except to harass and embarrass defendants into early settlements
Later in the filing, after eviscerating all of the reasons Malibu presented, the judge notes that the silly statements of both Malibu and its lawyer that there was no "ill intent" here don't even pass the laugh test.
Malibu Media's denials do not pass the smell test, and any denial of improper motive by its counsel does not pass the laugh test. For the reasons described above, there exists no good basis upon which a reasonable attorney -- subject to the ethical rules and restrictions of Rule 11 -- could conclude that attachment of Exhibit C to a complaint "for evidentiary purposes only" served any legitimate purpose at that stage of litigation.
Later, the judge acknowledges that copyright trolling cases "already give off an air of extortion" and uses that to claim that making that situation even worse with things like Exhibit C makes the whole effort sanctionable. Unfortunately, the judge then limits the sanctions to just $200 per case (there are 11 related cases) for a total of $2,200, and then actually lets the cases move forward (they had been stayed while this issue was resolved). It's at least something, and shows yet another dirty trick from a copyright troll, and how Rule 11 sanctions can be used against such activities -- but it's hardly a game changer. Since it seems likely that they've used Exhibit C elsewhere, however, it seems likely this will come up again.

However, given some of the other things that Malibu Media has been accused of doing recently, you have to wonder if Malibu and Lipscomb are on their way down the Righthaven/Prenda trail of more and more courts realizing what they're up to.


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    out_of_the_blue, Sep 11th, 2013 @ 1:56pm

    Current system works! Mike astonished.

    The wheels of justice grind exceeding slow and exceeding fine.

    You just happened to enter during the pause for reaction and decisions to come down, and mistook lack of action for basic problems in copyright.

     

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      Xploding_Cobra (profile), Sep 11th, 2013 @ 7:35pm

      Re: Current system works! Mike astonished.

      So what's next? You gonna start blowing kisses or what?

       

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      Anonymous Coward, Sep 12th, 2013 @ 5:40am

      Re: Current system works! Mike astonished.

      Unfortunately, the judge then limits the sanctions to just $200 per case (there are 11 related cases) for a total of $2,200, and then actually lets the cases move forward.

      Not so bad. A judge who is perceived as moderate is perceived as more credible and will be trusted more easily by other judges. In particular, he should not be suspected of taking copyright lightly.

      Maybe he'll match the $200 sanction with a $185 penalty for the actual pirating (if there was any -- arranging that may be beyond the capabilities of Malibu Media) while allowing the parties to bear their own costs. That would definitely take the winds out of the "business model". Of course, if Malibu Media starts losing cases they are finished.

      If I were running this scam I'd really prefer to stick to the demand letters -- private intimidation. I'd be afraid to go to court!

       

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    Anonymous Coward, Sep 11th, 2013 @ 2:02pm

    One Less Subscriber To the Site

    My current subscription ends in May. It shall not be renewed -- ever.

     

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    sophisticatedjanedoe (profile), Sep 11th, 2013 @ 2:04pm

    I'm happy that Keith Lipscomb, who is, IMO, worse than Prenda, is finally getting well deserved coverage.

     

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    Glen, Sep 11th, 2013 @ 3:14pm

    However, given some of the other things that Malibu Media has been accused of doing recently, you have to wonder if Malibu and Lipscomb are on their way down the Righthaven/Prenda trail of more and more courts realizing what they're up to.

    I sure hope so. I love a good meltdown.

     

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    Anonymous Coward, Sep 11th, 2013 @ 3:36pm

    the really sad thing is that had anything been done by an ordinary person, the judge would have ripped them up for ass paper and stuck thousands in fines or whatever into them. this paltry sum isn't worth bothering about. all Malibu will do is up the amount they try to get from the next victims!

     

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    Anonymous Coward, Sep 11th, 2013 @ 3:56pm

    Extortion

    Porn titles have some pretty fucked up names and they're using it as their weapon to extort people. They could give two shits about actual guilt or innocence.

    Who wants to be accused of downloading-
    Two in the stink one in the pink.
    Double stuffed Oreo.
    Mandingo anal abuse vol 17.
    Ultimate surrender "not gonna lie I fucking love that site.
    Ladyboy Rape Party III

     

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    That Anonymous Coward (profile), Sep 11th, 2013 @ 5:00pm

    I thought the point of sanctions was to impose an actual penalty.
    The amount in total is pretty much less than the value of 1 settlement.
    So instead of earning 30,000 from 10 targets, they are earning 27,800.

    High court, low court.

    I am saddened they did not include the letter where MM told a target to pay up or they were just going to make it cost him more in court. See their expert screwed up, there was more than enough evidence to prove the target was misidentified and was out of the country during the time frame. Rather than drop the case and apologize... pay us now or we'll bleed more cash out of you.

    But its nice that pocket change from the couch cushions of the office is enough to "punish" lawyers who were using underhanded tactics to terrorize people into paying them.

    Extortion with a law degree, and the courts are all to willing to help.

     

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    That One Guy (profile), Sep 11th, 2013 @ 5:14pm

    Ah those double standards...

    If a regular person was convicted or even strongly suspected of running an extortion racket even half as sleazy, where they threatened people with public lawsuits that would heavily imply that the victim was into illegal or strongly socially unacceptable activities unless they paid up, the judge would almost certainly throw the book at them, with massive fines and likely jail time in the mix. If nothing else the judge certainly wouldn't allow the lawsuits against those that refused to settle go through.

    However, disguise your activities by calling it 'copyright protection', and suddenly it's a slap on the wrist and the judge just looks the other way and lets you continue on.

    Today's legal system is a freakin' joke when even after noting that a copyright troll's actions strongly resemble an extortion racket, and agreeing that they intentionally present false evidence to try and force a settlement, the judge still hands them a pathetically small fine and lets the lawsuits go through anyway.

     

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    Anonymous Coward, Sep 11th, 2013 @ 5:31pm

    Keith Lipscomb and out_of_the_blue just hate it when due process is enforced.

     

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    Raul, Sep 11th, 2013 @ 8:13pm

    The amount of the sanctions is not the issue. This Order is a monkey wrench in their nationwide extortion enterprise. Just sit back and watch.

     

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    Atkray (profile), Sep 11th, 2013 @ 10:49pm

    Re: Sanctions

    Are these sanctions like getting caught speeding and the cop writes it up for "only" 5 over when in fact you were 25 over knowing you'll just quietly pay it?

    Also using the same analogy, is there some hit to their reputation like what a moving violation can do to your insurance rates?

     

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