Court Lets Malibu Media Move Forward With Discovery In Copyright Case, But Blocks 'Speculative Invoicing'

from the a-more-careful-approach dept

Just recently, we noted that a court in Australia, clearly understanding the issues with copyright trolling, had blocked Voltage Pictures/Dallas Buyers Club from pushing out questionable "settlement" letters (i.e., shakedown letters) to subscribers -- and required a huge bond if the organization wanted to move forward. It appears that some US courts may be thinking along similar lines in an effort to stop copyright trolls from abusing the judicial system as a way to shake people down for money in a practice known as "speculative invoicing" (i.e., pay up or we sue you).

The world's largest copyright troll, Malibu Media, has been taking some hits lately, pissing off judges who appear to be catching on to the game that Malibu and its lawyers (mainly Keith Lipscomb) are playing. And now, one judge is taking something of a page from that Australian court, in "allowing" Malibu Media to move forward with a case, but with a ton of restrictions to try to avoid the pure shakedown aspect of the business model (ht to Raul for the pointer).

The judge, James Bredar, in Maryland, clearly understands what Malibu Media is hoping to do: get ISPs to hand over names and contacts of a bunch of people, so that it can start bombarding them with demands for money, along with threats to "reveal" the names of embarrassing porn titles it's accusing them of downloading in the form of a lawsuit. Judge Bredar is allowing the discovery process to go on, but with restrictions to avoid the standard out-and-out shakedown game of Malibu Media. First off, before any names will be revealed to Malibu Media, all individuals must be given a chance to quash the subpoena:
After having been served with the Subpoena, the ISP will delay producing to Malibu the subpoenaed Information until after it has provided the Doe Subscriber with
Notice that this suit has been filed naming the Doe Subscriber as the one that allegedly downloaded copyright protected work;b. A copy of the Subpoena, the complaint filed in this lawsuit, and this Order;c. Notice that the ISP will comply with the Subpoena and produce to Malibu the Information sought in the Subpoena unless, within 30 days of service of the Subpoena, the Doe Subscriber files a motion to quash the Subpoena or for other appropriate relief in this Court. If a timely motion to quash is filed, the ISP shall not produce the subpoenaed Information until the Court acts on the motion.
Also, Malibu Media will need to pay all of the ISPs' costs, including attorneys' fees, and then if the subscriber does not seek to quash, the ISP will hand over the names... but, Malibu can't start shaking them down. Instead, it needs to hold the information in a confidential manner, and can only use it to file a lawsuit if it thinks it has a case -- and, even then, the name of the individual will be blacked out.
Malibu shall reimburse the ISP for its reasonable costs and expenses, including attorney's fees, associated with complying with the Subpoena and this Order. On receipt of the Information from the ISP, Malibu must mark it as "Highly Confidential," and, in the absence of further order of the Court, may only use it to determine whether, pursuant to Rule 11(b), it has sufficient information to amend the complaint to name as an individual defendant the Subscriber. Unless otherwise ordered by the Court, Malibu, its agents, representatives, and attorneys may not disclose the Information received from the ISP to any person not directly involved as an attorney in representing Malibu in this copyright infringement action relating to the Information received, except as provided below. Any person to whom the Information or its contents is disclosed shall be required to sign an agreement to be bound by the provisions of this Order, enforceable by an action for contempt, prior to being informed of the Information or its contents. Any amended complaint filed by Malibu naming an individual defendant shall be filed so that the name and any specifically identifying information is redacted from the publicly available court docket, to be replaced by first and last initials only, with an unredacted copy of the amended complaint filed under seal.
More importantly: no shakedown efforts:
Malibu is prohibited from initiating, directly or indirectly, any settlement communications with any unrepresented Doe Defendant whose identity has been revealed pursuant to the Subpoena or deposition described in paragraph 4 above. Any settlement communications with an unrepresented Doe Defendant shall be initiated only as approved by the Court. On request submitted to the Court at any time by Malibu or the Doe Subscriber, whether represented or unrepresented, settlement shall be conducted under supervision of one or more Magistrate Judges designated by the Court for this purpose. Unless otherwise ordered by the Court, any settlement negotiations shall be subject to the confidentiality provisions of Local Rule 607.4. This paragraph shall not prevent Malibu from initiating or responding to a request for settlement communications with a Doe Defendant who is represented by counsel.
In other words, the court knows what Malibu is up to and will be watching closely. It will be interesting to see if Malibu Media actually follows through or just cuts its losses and moves on to other courts with less aware judges.

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  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 19 Aug 2015 @ 2:32pm

    "Malibu Media will need to pay all of the ISPs' costs, including attorneys' fees" -- When exactly did ISPs become first line of Defendant's attorneys?

    Of course you pirates think it's great for deep-pocket ISPs to be on your side, but that applies in no other cases that come to mind. ISPs are supposedly dis=interested parties who happen to have the records sought. This is casting them as partisan on Defendant side.

    However, there is a drawback for you and the ISPs: since now manifestly partisan -- and with deep-pockets to go after -- this apparent shift may actually churn up more! -- I guess enjoy. I have no stake in either side, people: grubby little entertainment addicts on one side, greedy lawyers on other. I don't even enjoy the spectacle.

    reply to this | link to this | view in chronology ]

    • icon
      tqk (profile), 19 Aug 2015 @ 3:47pm

      Calling Dr. Voltaire.

      I disagree with what you say, but I'll defend with my life your right to say it so everyone will have the chance to laugh at your foolishness.

      reply to this | link to this | view in chronology ]

      • This comment has been flagged by the community. Click here to show it
        identicon
        Anonymous Coward, 19 Aug 2015 @ 4:16pm

        Re: Calling Dr. Voltaire.

        Oh, boy, at long last, an ally here against the rampant censoring!

        Now, "tqk", you wrote: "I disagree with what you say, but I'll defend with my life your right to say it so everyone will have the chance to laugh at your foolishness."

        That's all I've ever wanted or asked!

        But much less than your "life" is needed! When you see censored comments, copy the text and re-post it. Simple. The rest will eventually quit censoring. Persistence stopped censoring (for a while) in Russia; together we can stop it here on Techdirt!

        You could ALSO OR ONLY state that you protest censoring every time.

        Or were you, not to mince words, just another lying pirate-fanboy-troll making a smartass quip that you have zero intention of taking action on?

        reply to this | link to this | view in chronology ]

        • icon
          That One Guy (profile), 19 Aug 2015 @ 4:29pm

          Re: Re: Calling Dr. Voltaire.

          Or were you, not to mince words, just another lying pirate-fanboy-troll making a smartass quip that you have zero intention of taking action on?

          And that, right there, is a perfectly example of why you get reported.

          It's not, as you so fanatically claim that people are trying to 'hide the truth' or 'can't deal with second opinions' or anything like that, it's your continual insistence in acting like a spoiled child, utterly incapable of not handing out insults like party favors, lying, spamming the same crap repeatedly, and using strawmen after strawmen after strawmen.

          Learn to make your arguments in a civil, polite, and reasonable manner, and maybe you won't spend so much time in time-out. Keep acting like a child though, and you will continue to be treated as one.

          reply to this | link to this | view in chronology ]

          • icon
            tqk (profile), 19 Aug 2015 @ 5:42pm

            Re: Re: Re: Calling Dr. Voltaire.

            Or were you, not to mince words, just another lying pirate-fanboy-troll making a smartass quip ...

            And that, right there, is a perfectly example of why you get reported.

            Indeed. I mean, who could possibly have come up with a better retort to match his imbecility than himself, right from the horse's mouth, er, keyboard. Give him/her/it all the rope he/she/it wants, the better to hang him/her/itself with. What a masochist! :-P What on Earth can anyone be gaining from pissing into the wind like this, I really wonder.

            reply to this | link to this | view in chronology ]

        • icon
          tqk (profile), 19 Aug 2015 @ 5:48pm

          Re: Re: Calling Dr. Voltaire.

          And after this, are you still going to insist you're being censored, and if so, WTF is wrong with you?!? You're not censored. Anyone *can* read it if they want to. Having been reported, you just don't get to *force* your vitriol on anyone who doesn't want to bother with it.

          Here endeth the lesson. Have a marvy day.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 20 Aug 2015 @ 6:29am

            Re: Re: Re: Calling Dr. Voltaire.

            WTF is wrong with you?!?

            So what you are saying, is that YOU should be the only one to spew vitriol and not be reported?

            The very act of reporting someone for language you do not like is essentially anti-freedom of speech AND usually makes one a Hypocrit.

            While there is no right to freedom of speech on these sites, it think it is clear that when it comes to voting on issues, you would be an enemy of a free state at the very end of the day.

            You like so many others think that words need to come in a format that YOU only can approve of.

            reply to this | link to this | view in chronology ]

            • icon
              That One Guy (profile), 20 Aug 2015 @ 12:55pm

              Re: Re: Re: Re: Calling Dr. Voltaire.

              By all means, please point out where they posted a comment filled with personal attacks and strawmen, and I'll report that too.

              'You are not allowed to speak' is vastly different than 'I don't care to listen to you'.

              reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 20 Aug 2015 @ 10:44pm

              Re: Re: Re: Re: Calling Dr. Voltaire.

              The difference being that all you ever spew is vitriol, and admit to various CFAA-punishable offenses (enforcement of which you readily support) just to spam vitriol on this site.

              You've already been told so, but not only have you not left the site, you had the idiocy to post another pile of shit saying you "can't".

              Remember what you love to say? If you don't like the terms, do without.

              Fuck off, asswipe.

              reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 19 Aug 2015 @ 7:31pm

        Re: Calling Dr. Voltaire.

        Voltaire never said that, it was his biographer.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Aug 2015 @ 4:42pm

      Re: "Malibu Media will need to pay all of the ISPs' costs, including attorneys' fees" -- When exactly did ISPs become first line of Defendant's attorneys?

      "Of course you pirates think it's great for deep-pocket ISPs to be on your side, but that applies in no other cases that come to mind."

      I think you kinda miss the point. Posts like this, and comments like yours, show exactly why Mike isn't a shill for Google, the ISPs, or anyone else. He attempts to formulate his opinions based on merit and not based on who he is defending. Unlike you shills who always form an opinion based on how they line up with the middlemen. You are a shill. Mike is not. See the difference.

      Mike will criticize Google, the ISP's, and whomever else when appropriate. He will also defend them when appropriate.

      and it has nothing to do with the size of their pockets either. Whether it's a small Joe blow startup or a multi-billion dollar company like Google or the ISPs, Techdirt isn't basing their opinion on the size of their pockets. They're basing it on the merits of their related arguments. Techdirt has criticized the big and the small troll and has defended the big and the small companies alike. They have criticized some big and small companies for some things while defending them on others.

      While the only consistent thing about you is that you take the side that best lines up with the middlemen. The pro-IP side allegedly for the artists but when someone suggests that copy protections should not be transferable you say no. No matter what you criticize Google with the unfair and unsupported lie that it's based on piracy which makes sense for you to hold such a position if you are really supporting the middlemen because the middlemen doesn't like Google offering people a competing way of distributing content. You are a shill. Mike is not. See the difference.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 20 Aug 2015 @ 1:57am

        Re: Re: "Malibu Media will need to pay all of the ISPs' costs, including attorneys' fees" -- When exactly did ISPs become first line of Defendant's attorneys?

        "Malibu Media will need to pay all of the ISPs' costs, including attorneys' fees" -- When exactly did ISPs become first line of Defendant's attorneys?

        The alternative, and more reasonable explanation is that Malibu is creating costs for the ISPs when requesting information to support their case, and therefore they should pay for the work that they are demanding others to on their behalf. This is the same as paying expert witnesses.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Aug 2015 @ 10:55pm

      Re: "Malibu Media will need to pay all of the ISPs' costs, including attorneys' fees" -- When exactly did ISPs become first line of Defendant's attorneys?

      I'd like to talk to you about a church named Our Lady of Perpetual Exemption...

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Aug 2015 @ 2:39pm

    'cuts its losses and moves on to other courts with less aware judges'

    if Judges were to do their job properly, they would be fully informed everywhere of what Malibu was up to and how to make sure it toed the line every step of the way!

    reply to this | link to this | view in chronology ]

  • identicon
    Dreddsnik, 19 Aug 2015 @ 2:44pm

    The 'Report' button needs to be renamed.
    I think an 'Idiot' button would be closer to the mark.

    reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      identicon
      Anonymous Coward, 19 Aug 2015 @ 3:23pm

      Response to: Dreddsnik on Aug 19th, 2015 @ 2:44pm

      @ The 'Report' button needs to be renamed.
      @ I think an 'Idiot' button would be closer to the mark.

      Whatever we call it, the purpose of that bottun should be more than just hide the comment! Make it go away forever!

      I'm not afraid the way you lurbles are to say: CENSOR EARLY, CENSOR FULLY, CENSOR OFTEN!

      If there's one thing we here at Techdirt don't need, it's TWO opinions!

      reply to this | link to this | view in chronology ]

      • icon
        Rapnel (profile), 19 Aug 2015 @ 3:44pm

        Re: Response to: Dreddsnik on Aug 19th, 2015 @ 2:44pm

        I regret that I have only one idiot to click.

        reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 19 Aug 2015 @ 3:49pm

        Re: Response to: Dreddsnik on Aug 19th, 2015 @ 2:44pm

        Children throwing tantrums and insults about get sent to time-out. Don't want to get sent to time-out, stop acting like a child, it's that simple.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 19 Aug 2015 @ 4:53pm

        Re: Response to: Dreddsnik on Aug 19th, 2015 @ 2:44pm

        It's not censorship if one can easily click another button top read the collapsed comment.

        Get over yourself.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 20 Aug 2015 @ 8:33am

        Re: Response to: Dreddsnik on Aug 19th, 2015 @ 2:44pm

        A: It's not censorship. As anyone can plainly see your post is available and gets reported clearly because you're trolling.

        B: If you weren't trolling and you tried to come up with an argument that goes beyond personal attacks and patronizing then perhaps it would be censoring assuming no one had access to it. But even if it was inaccessible it's not censorship because often times posts like yours are irrelevant and err on the side of personal attacks and gibberish. I guess you can call it censorship but it's not much different than the removal of spam.

        C: IP defenders do in fact engage in censorship when possible. This includes pro-IP propaganda over television while not allowing disagreement over these mediums. This includes pro-IP blogs that I have seen outright delete comments or make them publicly inaccessible or don't allow comments or have a very strict moderation system that only allows certain comments through. This includes copy protection 'educational' campaigns that only allow one side of the story to be told. But not once will I ever hear you complain about this. Will you detest such censorship? Or will you just come here and rant about how you're not really being censored but you don't think you get the attention you deserve because no one here (or on pro-IP blogs and other outlets) pays attention to you.

        Freedom of speech doesn't mean people and communities should be forced to listen to you. It means the government shouldn't intervene in the process. That's what Techdirt is against. Many forums have moderation systems that allow communities to prioritize certain posts over others. That's not a restriction on free speech or at least not in the sense that's being criticized. It's little different than how television and radio prioritize certain artists and speech over others only when the television and radio do it it's sometimes self interested and not organically driven by the community. Also, because television and radio receive monopoly privileges from government, when they do it's also a violation of the first amendment since it's effectively the government (indirectly) abridging speech in the favor of those with govt sanctioned monopoly privileges. But you will never have the honesty criticize such censorship. Come on, you want to be taken seriously when you detest censorship right? Then criticize it when those that hold your position do it. I dare you. Otherwise there is no reason for anyone to take you seriously and you have no reason to complain when people don't. Only when your off topic trolling is deprioritized by a community that doesn't want to read it do you complain.

        reply to this | link to this | view in chronology ]

  • icon
    Sheogorath (profile), 19 Aug 2015 @ 3:34pm

    Motion to quash

    Your honor, given that my ISP caps my 'unlimited' internet connection to 500MB a month, I'm in no position to download even one movie, never mind the twenty-seven titles I'm accused of downloading.

    reply to this | link to this | view in chronology ]

  • icon
    Ehud Gavron (profile), 19 Aug 2015 @ 3:36pm

    The troll comment

    ISPs shouldn't have to bear the cost of troll's fishing expeditions. If troll wants ISPs to do research for it, troll should pay ISPs to do research for it.

    This prevents ISPs from being the VICTIMS of troll's greed.

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 19 Aug 2015 @ 3:40pm

    Yeah, have fun with that

    I hope the judge is ready to break out the legal sanctions for when(not if), Malibu laughs off all the restrictions and goes ahead, business as usual, 'accidentally' forgetting to black out names, 'forgetting' that they need to go through the court with any communications, and similar actions.

    The australian judge had the right idea, force them to put up a bond that they lose if they ignore the court, because as has been shown time and time again, parasites like this have no problem violating court orders if all they're going to get are sternly worded letters in return.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 20 Aug 2015 @ 12:15pm

      Re: Yeah, have fun with that

      A wager of 10 dollars to get 1 dollar in winnings plus your 10 dollar returned that Malibu on getting the (alleged) persons details that they will phone the persons work place and inform the work place that they wish to speak to the person on the basis of stealing (insert porn film titles).

      Yeah, I have no doubt Malibu will totally ignore the instructions of this Judge and will name the person in public records etc.

      reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 19 Aug 2015 @ 3:50pm

    "Malibu Media will need to pay all of the ISPs' costs, including attorneys' fees" -- When exactly did ISPs become first line of Defendant's attorneys?

    Of course you pirates think it's great for deep-pocket ISPs to be on your side, but that applies in no other cases that come to mind. ISPs are supposedly dis=interested parties who happen to have the records sought. This is casting them as partisan on Defendant side.

    However, there is a drawback for you and the ISPs: since now manifestly partisan -- and with deep-pockets to go after -- this apparent shift may actually churn up more! -- I guess enjoy. I have no stake in either side, people: grubby little entertainment addicts on one side, greedy lawyers on other. I don't even enjoy the spectacle.

    Addition: attorneys are not linearly connected expenses, but are acting in interest of possible Defendant to stifle discovery. That is unnecessary and partisan. A line has somewhere been crossed. Why should ISPs get those attorney's fees up front?

    Oh, and of course I'm re-posting just to show how childish and useless your censoring is. I don't mind because shows who YOU are.

    reply to this | link to this | view in chronology ]

  • identicon
    Raul, 19 Aug 2015 @ 3:52pm

    What I also found remarkable about this Order is that it is the first time that Malibu Media and its counsel has to sign a Certification acknowledging the "Highly Confidential" nature of the Doe's ID and the consequences inherent in "accidentally" disclosing it.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 19 Aug 2015 @ 5:38pm

    There once was an out_of_the_blue
    Who hated the process of due
    Each porn that he'd paid
    Was DMCAed
    And shoved up his ass with a screw

    reply to this | link to this | view in chronology ]


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