Magistrate Judge Recommends That Copyright Misuse Defense Be Allowed Against Copyright Troll Malibu Media

from the it's-something dept

It's rare, but every so often we'll see courts willing to entertain claims of copyright misuse. These are situations where copyright law is being so obviously abused for other purposes that a court slaps the abuser down. While it may not go anywhere, it appears that copyright trolling leaders, Malibu Media, who are single-handedly responsible for 40% of all copyright cases filed this year so far, may now have to respond to claims of copyright abuse. In one of its lawsuits, the defendant, Ben Miller, hit back with a long list of defenses, most of which have been rejected or set aside. However, a magistrate judge is recommending the copyright misuse defense be allowed to move forward:
Here, Defendant contends that “Plaintiff uses the same procedures of monitoring unsuspecting members of the public, directly connecting with the individual’s IP address, providing no ‘cease and desist’ notice, waiting until the evidence is destroyed, filing suit, and then offering to settle in exchange for dismissing the suit.” ... Plaintiff counters that “all it has ever done with respect to its copyrights is bring suits to enforce them; as a matter of law, doing so is not copyright misuse.”....

The Court finds that Defendant’s allegations are sufficient to support the affirmative defense. To the extent that the Plaintiff argues Defendant has failed to demonstrate, through his allegations, that the Plaintiff has “misused” the copyright law, the Court finds that such theory necessarily involves the issue of motive, which is generally reserved for the factfinder... (defendant must prove plaintiff “illegally extended its monopoly beyond the scope of the copyright or violated the public policies underlying the copyright laws”). Likewise, to the extent that the Plaintiff argues a “misuse” defense cannot be asserted if the allegation is merely that Plaintiff has filed a suit for infringement, the Court finds that Defendant has sufficiently argued more than the single allegation
The court need not go with this recommendation, but if it does, it could be worth watching closely. Remember, Malibu Media has already been in trouble for some of its practices, and others have long argued that the company is worse than Prenda with its tactics.

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