Malibu Media Copyright Troll Wakes The Beast In Trying To Push Verizon Around

from the not-a-good-idea dept

While we have our issues with Verizon in other areas, the giant telco does have a strong history of protecting its users against crazy copyright trolling and other forms of attacks. Verizon led the way in fighting back against the RIAA when it started demanding Verizon hand over information on tons of customers before any lawsuits were filed. Verizon won. Without this big victory, the copyright trolling situation today would be much, much worse. Verizon has also been known to be on the side of good when the RIAA and MPAA push for extreme changes to copyright laws as well. So it's no surprise that it's now entering a key case in the US's biggest copyright troll, Malibu Media.

In a case before Judge Katherine Forrest in the Southern District of NY, things have not been going that well for Malibu Media. And, this may be surprising to some, given prior to becoming a judge, Forrest was one of the RIAA's lawyers in copyright lawsuits over online infringement. Yes, really.

As per usual, the FightCopyrightTrolls site has been doing a great job keeping tabs on this case, which started getting attention a month ago when the lawyers representing the (still anonymous) John Doe defendant called Judge Forrest's attention to Malibu Media's latest nasty shakedown trick. Earlier in the case, Malibu Media was granted discovery of the Doe's computers and couldn't find any evidence of the Malibu Media/Xart material. But rather than drop the case, Malibu Media's legal team did the standard trick of subtly threatening to embarrass/harass the Doe if he didn't pay up, by putting him through a litany of irrelevant questions designed to find out other people who know the Doe who Malibu Media might go after:
During the deposition, Malibu’s counsel propounded a morass of irrelevant questions concerning, inter alia, Doe’s educational background (including factual and technical details about the courses Doe studied), the identity and location of Doe’s family members, the identity and location of Doe’s employers years before the relevant period herein (including factual and technical details about Doe’s job roles and responsibilities), the location of Doe’s residences years before the relevant period herein, the existence of Doe’s resume/CV, identity and location of persons in Doe’s personal and social life. Indeed, Doe answered questions about two decades’ worth of his life. This line of questioning lasted for more than 2.5 hours. Doe’s testimony in response to these questions is not relevant or material to Malibu’s single cause of action for direct copyright infringement or any of Doe’s defenses.

[....]

Dissatisfied with the lack of evidence of infringement and existence of testimony denying same, Malibu’s counsel falsely accused Doe of destroying evidence and reiterated her intention to depose Doe’s significant other (wrongly identified by Malibu as Doe’s wife). In person, at the deposition, the undersigned reiterated Doe’s objection to producing Doe’s significant other and indicated that no evidence exists as to infringement by Doe, such that testimony from any other person concerning same has no probative value and would be pursued only for purposes of harassment. Malibu’s counsel reiterated Malibu’s intention to depose Doe’s significant other and potentially other parties.

[....] While Doe is cognizant of Malibu’s ostensible desire to conduct thorough discovery, it has become apparent that, in the absence of any evidence of infringement on Doe’s part, Malibu is conducting a fishing expedition and campaign of harassment by threatening to depose nonparty witnesses on irrelevant topics and to continue to depose Doe on same. In so doing, Malibu is attempting to prevent ultimate resolution in this matter by creating the false sense that evidence of infringement or wrongdoing exists.
Judge Forrest quickly sided with the Doe and against Malibu Media:
Protective order granted. Plaintiff may not subpoena neighbors or Defendant’s significant other based on the current record. As to the neighbors, Plaintiff would be engaged in a fishing expedition and/or harassment of defendant (by way of causing embarrassment/humiliation).

The issue in this is [sic] case is did this defendant download Plaintiff’s works — not anyone living in the apartments nearby.

As to Defendant’s significant other, the Court has read the transcript of the deposition. The testimony is that any use of this woman was on Defendant’s computer. There is no evidence that the computer has or had any of Plaintiff’s copyrighted works that I can see — thus, whether the girlfriend used the computer is irrelevant.
Malibu Media is not happy about this. It is both continuing to push the issue by arguing that the Doe should be "sanctioned" for "perjury" because its "computer forensic examiner has discovered that Defendant used military grade computer wiping software to delete material evidence from his hard drive" and it has asked to subpoena Verizon to try to continue its fishing expedition.

And, yes, now we've finally gotten to Verizon which appears to be fairly pissed off about Malibu Media and has made it clear that Malibu Media's subpoena attempt is not just "defective" but flat out ridiculous.
Here, Plaintiff has not demonstrated “good cause” for extending the discovery cut-off. Its subpoena suffers from multiple defects. It was served on the eve of the discovery cut-off without affording Verizon any meaningful opportunity to investigate the alleged facts. The subpoena was issued from this district but served in Texas and purports to command the appearance of Verizon’s representatives—who reside in or near Arlington, Virginia—to testify on six days’ notice in Texas, i.e., outside the 100-mile radius for commanding testimony of a witness.... And, the subpoena seeks information far beyond that contemplated by the Cable Communications Policy Act (“Cable Act”) as discoverable from an ISP — i.e., more than the name and address of the subscriber associated with an IP address, which Verizon already provided in response to an earlier subpoena in this action. Verizon objected in writing to the current subpoena within six days of service, yet Plaintiff has made no real attempt to address those objections.

At bottom, Malibu Media’s subpoenas impose a significant, cumulative burden on Verizon, while “us[ing] the offices of the Court as an inexpensive means to gain the Doe defendants’ personal information and to coerce payment from them.” K-Beech, Inc. v. Does, 2011 U.S. ...; see also Northwestern Mem’l Hosp. v. Ashcroft,... (rejecting argument that a subpoena causes no undue burden merely because “the administrative hardship of compliance would be modest,” but considering instead “the rash of suits around the country” and the publicity generated). Given the defects in the subpoena and other problems addressed herein, Verizon respectfully submits that Plaintiff’s request for relief should be rejected.
Many people have wondered why Malibu Media/Xart have not yet faced the same sort of crackdown as Team Prenda, and it seems likely that it's only a matter of time, and the right case -- with the right judge. Getting a big ISP involved in a case seems like the kind of thing that could finally tip the scales -- as it did in one of the key Prenda cases as well.







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  • icon
    Violynne (profile), 2 Oct 2015 @ 12:09pm

    Oh, wait. There's Verizon's silver lining. By preventing Malibu Media from getting the extortion payout, Verizon defends their "customer" so they can do the extorting.

    Clever, Verizon. Makes the company look like a rose shaped as an ass.

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

    • identicon
      Anonymous Coward, 4 Oct 2015 @ 7:09am

      Re:

      It's just like paying protection to the mob. You hate them for the extortion most of the time, but when they break the legs of the guy who robbed you it's kinda cool.

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

  • identicon
    Baron von Robber, 2 Oct 2015 @ 1:02pm

    ootb just hates it when due process kicks copyright asshats square in the balls.

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

  • identicon
    Anonymous Coward, 2 Oct 2015 @ 1:14pm

    "military grade computer wiping software" aka pretty much any software designed to securely delete files. The DoD's standards and the private sector's standards don't differ all that much in this area.

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

    • identicon
      Anonymous Coward, 2 Oct 2015 @ 1:18pm

      Re:

      How does Malibu pointing out that Doe took steps to protect his identity online benefit them?

      Are they trying to argue: "Your Honor, this man follows security best practices by using secure undelete utilities. Clearly anyone using security best practices is a sinner, porn watcher and copyright infringer!"

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

      • icon
        WDS (profile), 2 Oct 2015 @ 2:36pm

        Re: Re:

        They allege that there were several different packages on the machine, and that there was no evidence that any of them were on the machine until just before he turned the drive over to them for inspection.

        The flaw in their credibility is they make that claim about a piece of software that comes bundled on his brand of laptop, as well as the other pieces of software.

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

    • identicon
      Anonymous Coward, 2 Oct 2015 @ 1:38pm

      military grade computer wiping software

      if evidence of using military grade computer wiping software was found on the computer, i would not consider that to be military grade computer wiping software

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

      • identicon
        Anonymous Coward, 2 Oct 2015 @ 3:39pm

        Re: military grade computer wiping software

        All modern OSes provide military grade computer wiping as an option. Therefore, finding that software is pretty simple.

        But from what Malibu asserts, I'd be more likely to guess that after inspecting a copy of his hard drive, they found that certain records were missing, and the empty space on the disk was filled with perfectly random data.

        Which is as things should be.

        They should just be glad that the defendant wasn't using an SSD drive and disk-level encryption (which is available on all modern OSes with the flick of an option); they'd get absolutely nothing of ANY use in that case.

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

        • icon
          That Anonymous Coward (profile), 2 Oct 2015 @ 3:50pm

          Re: Re: military grade computer wiping software

          They claimed what they couldn't find proved it, and that there were registry keys of the software left behind.
          So someone who meticulously wiped all traces of the MM porn that they hid on an external device or dropbox, managed to miss registry keys left behind.

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

  • icon
    That Anonymous Coward (profile), 2 Oct 2015 @ 2:58pm

    Lets not forget that they were also pissed that the Doe did not just hand them his DropBox login & password.
    That they were upset that there were not references to things that had absolutely nothing to do with the case. He went on a vacation we can't find any pictures or web searches for that.

    The problem with MM imaging entire machines is the simple fact they want to troll your entire life, and even when a Judge tells them to stay limited to the content at the center of the case, they manage to locate all of these other things they offer up as evidence supporting their claims. Yet somehow it is always the Does got rid of their content but left all of this other "incriminating" evidence.

    This is about doing whatever it takes to get a settlement.
    This is a cash grab.
    This is the courts handing peoples entire lives over to the lawyers who violate court orders.
    The entire system is setup to try and trap a Doe into a position where they feel it is easier to just pay them to fuck off, than to keep trying to prove they are innocent. Forget that the 3rd cousin twice removed visited your house in the last 3 years, thats evidence you perjured yourself!

    Nothing Verizon can provide proves any of the elements required for MM to prove their case. This is a play to try and reach 50.1% that it could have happened, and that is a flaw with the civil system in these cases. When allegations are breathlessly repeated, an "expert" can state legal conclusions based not on evidence but assumptions and still be taken seriously, and not wanting the entire neighborhood asked if they downloaded porn on the accuseds wifi are shown as evidence of guilt & not just a pattern of harassment to shake money out of the name on a bill.

    It is nice to see an ISP refuse to just roll over and be complaisant in the extortion of their customers. The entire legal system needs to stop bending over backwards for the trolls who claim all sorts of evidence of guilt, but then require months (and months) to harass the Doe before serving the case, and then months of discovery when they claim a solid case from the get go, with a flurry of delays & demand at the end because they can't keep up with their caseload at the home office as the locals don't do anything but rubber stamp the papers others prepare for them to sign & swear to - that they didn't participate in creating.

    I do hope he tried to sue Verizon, its worked so well for the others.

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

  • icon
    sophisticatedjanedoe (profile), 2 Oct 2015 @ 4:59pm

    Paige's report

    Since I observe a great interest in the report that claims "military grade spoliation," I'm posting it. It is currently officially not accessible. Lipscomb & Co, as they did many times before, poorly redacted the document and exposed the defendant's name in violation of the protective order. After I notified defendant's counsel, the document was removed from both ECF and archive.org. It will be eventually refiled, but for those who can't wait, I did my own redaction:

    Here it is.

    I do want people to discuss the report before I write about it. It is suspicious, starting with the simple fact that such massive spoliation was not detected by the purported expert during the first pass. WDS mentioned the "Asus wipe," which comes bundled with Asus laptops, etc.

    The report lacks supporting evidence, while legal conclusions are abundant, which is not appropriate for a forensic expert to make: this is not only my opinion: it also raised many brows among lawyers.

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

    • icon
      That Anonymous Coward (profile), 2 Oct 2015 @ 8:15pm

      Re: Paige's report

      How horrible it must be for Lippy, who at a drop of a hat tries to portray us as evil people, has to accept that we have more respect for the courts orders than his crew.

      The report reads like great page turning fiction, shame it was written after they got their asses handed to them and they needed a hail mary to keep on the pressure after their plan to depose the entire free world was derailed.

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

      • identicon
        Anonymous Coward, 3 Oct 2015 @ 6:29am

        Re: Re: Paige's report

        I know, right? Such as this passage:

        For example, Defendant's name is [redacted]. Yet, the only mention of [redacted] pertaining to Defendant was a single result relating to a Kindle Fire - which Defendant also failed to produce.


        Since the Kindle is not known for its BitTorrent downloading abilities, I'm really not surprised that it wasn't produced. Yet here it's effectively an accusation.

        Defendant testified that he uses his Asus to access his LInkedIn account... The Asus contains no evidence of Defendant's LinkedIn account.


        Hmm... Perhaps the Defendant uses private browsing habitually? I do.

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

        • icon
          That Anonymous Coward (profile), 3 Oct 2015 @ 10:47am

          Re: Re: Re: Paige's report

          They demand every device with any possible storage, the courts seem to have no issue with this invasive searching. It has already been shown that MM's expert will violate court orders about limiting the search to MM content.
          This is about producing a list of things and if you forgot you connected a friends flash drive, and it shows up on the list of things ever connected the "expert" claims that they must have lied and concealed it... even if the device was never owned by the Doe. Think about the number of times a friend plugged anything into your computer, even if it was just to charge it. Now sit in a room for 5 hours being bombarded with 30000 questions that range well outside of the issue at hand... your chances of remembering the last time someone charged their phone off your pc?

          One might need to ask the court why a LinkedIn account is germane to a case about alleged BT dling of a porn. One might also wonder why a Doe would be expected to turn over details that could allow them to access these types of accounts. LinkedIn isn't exactly TPB afterall.

          Forcing people to recall details from events from months and months (or a year cause MM isn't real good at serving Does in a reasonable amount of time) ago, and holding them to having a photographic recall of every detail is insane.

          This is more stacking of the deck, creating the illusion that they just hid the file on some flash drive that is now hidden in their anus until the coast is clear and then they will start seeding the file again. Because someone who is actually guilty is totally going to pay 3 times the settlement price to defend their good name, knowing that MM will end up leaking their name and threaten everyone they know with invasive questioning designed to make them settle to avoid the embarrassment from allegations that are impossible to disprove. How does one prove a negative, when simply forgetting a flash drive will be held up as "proof" that you lied about eveything and must be guilty?

          For "evidence" that is less than a blink of an eye in length, one might wonder how that gives them the right to unfettered access to the accuseds entire digital life.

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

          • icon
            That One Guy (profile), 4 Oct 2015 @ 10:07am

            Because copyright

            I've said it before and I'll say it again, you can get away with pretty much anything so long as you claim to be doing it in the name of copyright. Extortion, censorship, gutting the public domain and sabotaging cultural growth, destroying the idea of 'innocent until proven guilty'... it's all good as long as it's in the name of protecting the holy 'copyright'.

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

    • icon
      That One Guy (profile), 2 Oct 2015 @ 8:36pm

      Once is a mistake, twice is suspicious, three times or more is on purpose

      Lipscomb & Co, as they did many times before, poorly redacted the document and exposed the defendant's name in violation of the protective order.

      Yeah, if they've 'accidentally' exposed the names of defendants before, in direct conflict with orders from the court, I'd say it's time to stop giving them the benefit of the doubt. They're either incredibly incompetent, or doing it on purpose as part of their scam to add pressure to pay up.

      'Accidentally' revealing the defendant's name like that should be grounds for immediate dismissal of the case, with prejudice. Maybe having a few cases gutted would teach them to actually pay attention when the court tells them to not do something.

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

  • identicon
    Raul, 2 Oct 2015 @ 6:44pm

    In another MM case where there is no evidence of infringement the trolls have made another motion to depose the ISP. Hopefully there will be pushback there as well. The case can be found at MIWD 13-cv-360.

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

  • identicon
    Alex, 3 Oct 2015 @ 4:18am

    Time to legalize prostitution or change the business model

    With today's sophisticated entertainment and rapid piracy that's hard to stop worldwide, aka russia, a change in business model is needed, it need not be a brothel in the dark or a nevada style license, it could be a closed off site where folks who are healthy and qualified can not just have sex but interact with the models.

    Eventually folks will just start getting tired of watching other people have fun while they aren't. Do you really think companies will start suing poor cash strapped folks in russia,ukraine,india,chima,etc for money.

    I do believe of course that high quality content is worthy of praise but of course porn which can border on art vs. legalized prostitution (if the model doesn't have sex no money, and the theme is about sex, not a movie which the person has sex in one of the scenes).

    In many cases its not just piracy, its that high quality content, increased bandwidth, and even higher quality video and bandwidth, with the internet is making porn more selective but eventually becoming a victim of its own success.

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

  • This comment has been flagged by the community. Click here to show it
    identicon
    Gökhan, 4 Oct 2015 @ 6:03pm

    web tasarım

    thank you

    www.webtasarimservisi.com

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

  • icon
    sophisticatedjanedoe (profile), 6 Oct 2015 @ 6:54am

    A followup

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

  • icon
    sophisticatedjanedoe (profile), 7 Oct 2015 @ 6:07pm

    Malibu doubles down and opposes Verizon's MTQ, claiming that... since the requested information was not about defendant’s cable TV viewing, but his Internet usage only, the Cable Act doesn’t apply. I'm not kidding.

    Scroll down to today's update.

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


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