Malibu Media Picks Fight With Wrong Defendant, Now Facing Abuse Of Process Allegations
from the A-CHALLENGER-APPEARS dept
Malibu Media continues to burn judicial bridges. This is due to its habit of juggling hundreds of lit torches at any given time. Sooner or later, a few are going to get dropped. The prolific copyright troll continues to issue speculative invoices at the rate of dozens a month. Federal judges all around the country are sitting on backlogs of Malibu Media filings. But one thing remains certain: pushback by defendants tends to result in judicial examination of MM’s courtroom tactics. And that’s the last thing this serial litigant wants.
When cases are actually examined on their merits, judges have been less than impressed. Some have noticed Malibu Media has little interest in actually serving defendants. Some have refused to let the troll dismiss cases the instant it experiences a little judicial friction. And, in Northern California, a judge has all but banned Malibu Media cases from his courtroom.
Here comes more bad news for Malibu Media. As Sophisticated Jane Doe reports, MM looked ready to cut-and-run on another settlement attempt gone haywire. Instead of making off with some money or its assertions unquestioned, the defendant countersued, alleging abuse of process by the troll. The judge handling the case isn’t sold on the copyright infringement counterclaim but isn’t going to let MM dismiss the case and bypass possible consequences for its process abuses. The judge also explains why he won’t do this with a short rundown of Malibu’s trolling tactic. From the order [PDF]:
The Court notes Plaintiff’s penchant for litigation, which includes its filing of more than 100 cases in this district, more than 200 cases in the Southern District of Ohio, and hundreds more across the country….. While Defendant’s [copyright] counterclaim is redundant, the Court finds that his concern of Plaintiff filing suit in the future without a determination on the merits is very real. The Court, therefore, hereby notices the parties that it will not accept a voluntary dismissal of the instant case unless it is with the consent of both parties.
This prevents Malibu Media from dismissing its lawsuit because things aren’t going the way it thought they would. I’m sure Malibu isn’t thrilled with this turn of events, because it allows the defendant to move forward with his abuse allegations.
Defendant alleges that Plaintiff “made knowing misrepresentations in its Amended Complaint,” that it pleaded copyright infringement “despite knowing that an IP address alone is insufficient to identify an infringer,” and that it “intentionally failed to disclose and concealed pertinent and material information regarding [P]laintiff’s knowledge of the falsity of certain claims[.]” See Answer at 12–13. Defendant specifically alleges that Plaintiff instituted the action “without any genuine intent to proceed,” and that it “used the completed service to publicly shame [Defendant].”
And here it is broken down even further — pretty much a concise summation of every copyright trolling operation ever.
Assuming that these allegations are true, as the Court must at this stage, Defendant has adequately pleaded a cause of action for abuse of process. The first element, the ulterior motive, is clear: Plaintiff seeks to extort a settlement payment. The second element, the coercive act after the issuance of process, is satisfied by the alleged knowing misrepresentations Plaintiff made in its Amended Complaint.
This is only part of the list of counterclaims [PDF] made by the defendant — claims that will now be examined by a judge which will likely require Malibu to turn over information it would rather keep secret about its extensive trolling operation.
Plaintiff willfully abused, misused and/or misapplied the process for an end other than that which it was designed to accomplish.
Plaintiff intentionally failed to disclose and concealed pertinent and material information regarding plaintiff’s knowledge of the falsity of certain claims and the ulterior or illegitimate purpose for which the Complaints were employed.
Specifically, plaintiff failed to disclose and concealed pertinent and material information that includes but is not limited to the following:
a. Plaintiff instituted the original action without any genuine intent to proceed against defendant herein, but rather as a vehicle to obtain discovery of the identity and contact information of defendant and others;
b. Plaintiff knows it has no basis for naming defendant/counterclaimant as the infringer, yet continues to assert the claims against him;
c. Plaintiff assert its claims in order to influence the conduct of defendant in ways that are not related to the merits of its claims;
d. Plaintiff used the completed service to publicly shame defendant/counterclaimant; and
e. Plaintiff intends the current action to hang as a sword over defendant’s head, to extort unwarranted payments to settle claims not supportable as a matter of law.
I would love to see a copy of Malibu’s risk/reward analysis. Every lawsuit filed carries with it the chance its malfeasance will be exposed. There are a lot of variables Malibu can’t control but it still must see enough profit to offset the risks raised by filing lawsuits by the fistful. But it won’t remain that way forever. Trying to convert IP addresses into paychecks is a terrible con and Malibu is no artist.
Companies: malibu media
Comments on “Malibu Media Picks Fight With Wrong Defendant, Now Facing Abuse Of Process Allegations”
We have to acknowledge they are one of the oldest in the business where Righthavens and Prendas of the world have already fallen. Something is telling me to grab my popcorns because the climax is approaching once again. Fiery deaths on the horizon.
By same token, it's easy to lawyerize un-found-able charges.
But that in no way bears on merit of the copyright claims, which is what Techdirt tries to package in here.
Key problem with copyright cases has ALWAYS been that it’s difficult to prosecute, and orders of magnitude more difficult now on “teh internets”. But difficulty and lack of risk doesn’t magically make copyright infringement, distribution of someone’s valuable work, piracy in short, legal or moral.
Basically all Malibu Media does is provide Techdirt with way to attack copyright, so I’d advise ending this valiant innovation…
Those who support copyright can click to https://torrentfreak.com for a counter-dose of hoots: the news of late is near all dire for pirates, but Techdirt doesn’t report that!
Re: By same token, it's easy to lawyerize un-found-able charges.
Confusing law with justice again, are we? Did infringement occur? I don’t know; THEY don’t know – and that’s the point. If MM has reasonable proof the defendant did something wrong, they should present it before asking for a settlement.
Re: By same token, it's easy to lawyerize un-found-able charges.
Odd; I seem to recall Techdirt reporting this last month.
The issue isn’t with copyrights or even copyright law; the issue is with the interpretation and application of copyright law.
For example, the Vimeo case that is now at 9 years in the court system because the various judges can’t agree on how to interpret the DMCA and copyright in their situation… even though we’re dealing with pre-1972 recordings that aren’t covered by copyright law in the first place. They HAVE now been found to be covered by safe harbour provisions of the DMCA however.
The problem here is that the laws are imprecise, open to interpretation, and the intent behind them is often lost by those with a particular agenda (usually to make short-term profit) and those who have listened to those with a particular agenda for so long they’ve lost awareness of the full landscape.
And that’s why it’s important for sites like TechDirt to keep raising this same issue over and over again… because if they stop doing it, people will stop knowing and caring how the law was designed to be used in the first place.
Re: By same token, it's easy to lawyerize un-found-able charges.
Oh, finally you stopped using the “theft” mantra? What evolution!
And then you link to a blog that’s even more “anti-copyright” than TD. Are you some sort of masochist?
Re: Re: By same token, it's easy to lawyerize un-found-able charges.
Hey at least he stoped linking to infowars…
Re: Re:
Nor does it make bullshit legal cases any less bullshit.
Re: By same token, it's easy to lawyerize un-found-able charges.
This article isn’t attacking copyrights. It’s attacking questionable legal entities that produce nothing and their sole source of income is getting people to pay settlement fees who may or may not have done the deed of which they are accused in the first place.
It’s a con and a sham and has nothing to do with copyright other than Malibu Media is abusing copyright law to make money. That’s what you are defending, a corporation who is deliberately, maliciously, and willfully forcing people to pay them for a crime they probably didn’t even commit because it’s cheaper than to try and prove their innocence in court.
You might want to re-phrase your statement. The way it’s worded has the meaning that ANY distribution, including the legal ways, is illegal, immoral, and copyright infringement. In its current wording, your statement means that no author or creator of content could distribute his work to ANYONE, because distribution of any kind is wrong. This means he couldn’t engage a publisher to sell it for him in stores or online, which means he couldn’t make any money off it.
Re: By same token, it's easy to lawyerize un-found-able charges.
Another satisfied Rant-o-matic 2000 customer!
Re: Hey bro. How’s that John Steele appeal going?
Re: Re:
News of late dire for pirates? Top two headlines read:
MPAA Quietly Shut Down Its ‘Legal’ Movie Search Engine
Reddit Copyright Complaints Jump 138% But Almost Half Get Rejected
Right, that’s so dire. I’m simply shaking in my shoes here…
Malibu Media, the Prenda of pornography.
Re: Re:
Prenda was the Prenda of pornography!
Re: Re:
That’s sorta like Krusty’s “the Cadillac of automobiles” line, isn’t it?
“Our courts are halls of justice where fairness and the rule of law triumph, and my office will use every available resource to stop corrupt lawyers from abusing our system of justice.”
“The FBI remains committed to uncovering fraud such as this to protect the integrity of our civil justice system.”
https://www.techdirt.com/articles/20161216/14262736298/team-prenda-finally-goes-to-jail-hansmeier-steele-indicted-arrested.shtml#c597
We have a fscking list… since Dec 2016 these morons haven’t bothered to look at it.
Re: Re:
List of victims? Fraudsters using the courts for profit?
Ah sweet schadenfreude...
A judge that refused to let them pull the standard troll/extortionist tactic of ‘Our targets are willing and able to fight back, cut and run’ and is allowing the defense to pose some questions? Rare and all the more entertaining because of that.
I suspect that the defendant’s lawyer will be on the receiving end of some increasingly desperate ‘settlement offers’ in order to get them to drop this, as having their SOP laid bare in court, where it could be refereed to in other cases by other defendants is not something MM will be eager for.
Hilarious
Our friends at Malibu Media are going for the kill. The defendant admitted way too much in their brief, given the reputation of the plaintiff. After counterclaims gets dismissed by mere notification that the evil stuff didn’t happen in this case, but the counterclaimplaintiff googled for some crap from the net and tried to submit that as a fact. So this case is a clear win for the Malibu. Denying the inevitable progression of the cases against professional copyright trolls is a losing proposition.
Basically courts do not sit idly on the face of the parties trying to annoy other side of the table. Proper defendant would first regognize the value of plaintiff’s pornographic copyrighted works, and then try to find a resolution where both sides interests are being met. But no, this guy decided to hit where it hurts hardest, with abuse of process counterclaim.
Re: Hilarious
Voted funny. Seriously, what part of “IP address isn’t evidence” do you not understand?
“Proper defendant” would be one who has something to answer for, not a ticked-off innocent trying to crowbar a troll out of his wallet.
Do you really believe that “speculative invoicing” is a valid business model? Why?
Re: Re: Hilarious
Re: Re: Re: Hilarious
This completely contradicts this statement:
Also, in no way is an IP address enough to locate an operation. Case in point, VPNs.
Obvious troll is obvious. You were doing pretty good imitating tp right up until you slipped up and called them a bunch of trolls. Anyone who actually supported them would never think of them as trolls and wouldn’t refer to them as such. They would think of them as victims.
Commendations are in order for the attempt but really, tp, blue and the others do not need any help.
Re: Re: Re:2 Hilarious
Re: Re: Re:3 Hilarious
An affirmative defense or counterclaim admits nothing. The famous example being the response to a dog bite suit being:
1. My dog doesn’t bite.
2. That was not my dog.
3. I don’t have a dog.
Being perfectly fine to all exist together as affirmative defenses.
Re: Re: Re:4 Hilarious
Re: Re: Re:5 Hilarious
So calling an idiot an idiot and a troll a troll is not allowed? That’s rich.
What about a liar? If the troll is lying is the defendant not allowed to call them out on it? Because that’s exactly what’s going on here. MM is lying about having any evidence or proof (other than an IP address, which is evidence and proof of nothing) and the defendant is calling BS.
Their defense isn’t a bunch of BS, it’s saying "Hey! We didn’t do what you accused of us doing and the proof you presented is a bunch of BS that proves nothing!". If I accuse you of stealing from my house and all I have is doctored video footage of a guy who may or may not be you stealing from me, it is absolutely a valid defense to point out that I doctored my video footage. At that point my case against you falls apart.
This is no different. MM was caught deliberately seeding their own content, which means they have no legal ground to stand on EVEN IF someone downloaded it because it’s the equivalent of them standing on the street corner handing out DVDs for free, then turning around and suing the people who took them for theft. The law doesn’t work that way. If you give it out for free that’s your own damn fault.
Re: Re: Re:3 Hilarious
An IP address does not prove location, nor does it prove that a particular person was the infringer. This has been proven to be extremely inaccurate to the point where the judge even bothers to point it out that the IP address is not proof or evidence of anything.
Not big at all, easy to verify.
Nope. This could have been done as part of discovery by lawyers during their investigation. Regardless, you don’t actually have to download (read access or infringe) to see who the seeders of a torrent are.
As has been stated by the judge, defendant, TD, myself and scores of other people, there is no evidence, much less proof, that the defendant even accessed this content in the first place. ALL they have is an IP address, which is proof of nothing.
Probably because they weren’t even engaging in said illegal activity.
For all the reasons I stated above and more, it’s not strong proof, it’s not proof, it’s not even evidence. MM has nothing.
Um, you do realize that if the actual computer that downloaded the content was halfway around the world that that’s a pretty strong case that the defendant had nothing to do with it right?
The paperwork isn’t messed up and even if it was, the computer location and IP addresses are ABSOLUTELY relevant. If the guy didn’t even have access to the computer that downloaded it because it wasn’t his, he can’t be responsible because he didn’t actually download anything. But regardless, you can’t prove one way or the other based on IP address alone, which is the ONLY piece of evidence MM has. None of the statements made by the defense was even remotely indicative of an admission of wrongdoing.
Stop shilling. It’s sad and pathetic that you have to divorce yourself from reality and ignore common facts about how the world works just to get a paycheck. There are better ways to make money.
Re: Re: Re:4 Hilarious
Re: Re: Re:5 Hilarious
Yes, yes it is. It is a GIANT slippery slope to assume that using a common internet technology automatically makes you a pirate. Bittorrent is used for many more things than just pirating content. It’s a transfer protocol, nothing more, nothing less. Blizzard uses it to distribute updates to end users for World of Warcraft. You going to call Blizzard a bunch of filthy pirates now?
No, all that proves is they are using a freely available tool on the internet for some purpose. Whether that purpose is legal or illegal has nothing to do with the fact that they were using bittorrent or not.
Again, bittorrent is legal software to use. It’s what you do with it that may or may not be illegal. There are many legal uses for bittorrent. What it does prove is the defendant didn’t go out and steal some paid for torrent application, they used a legal free client.
It does nothing of the sort. All it does is make MM and you look like a bunch of idiots because you either don’t understand how to internet or you just flat out don’t care whether the person actually committed the crime in question, as long as you get paid.
Re: Re: Re:6 Hilarious
Re: Re: Re:7 Hilarious
There are a large number of burglars using crowbars, but it doesn’t make it illegal for me to have one.
For grins, list one (only one) lawsuit were someone was targeted for using bit torrent. Not for copyright infringement, but for using bit torrent.
Re: Re: Re:7 Hilarious
and the activity is generally considered illegal Also not even remotely true. Many individuals and companies use it for legitimate purposes and it is well recognized as a legitimate, legal, and useful tool. Get your facts straight.
None of your points makes the usage of bittorrent even remotely questionable, let alone illegal. The only thing that has any bearing on it was whether bittorrent was used to pirate content in this case. MM has failed to present any proof of that.
You fail.
Re: Re: Re:8 Hilarious
Re: Re: Re:9 Hilarious
sigh Once again, your facts are completely wrong.
So clearly web browsers are no better or worse than bittorrent, and you do not understand anything that you are talking about and are either spouting a bunch of nonsense or are parrotting what you’ve been told to say.
Re: Re: Re:10 Hilarious
Re: Re: Re:11 Hilarious
Not going to quote your text but will tag them in order.
Re: Re: Re:10 Hilarious
I started to reply to tp, but then I said “Why???”
Re: Re: Re:11 Hilarious
Re: Re: Re:12 Hilarious
2, 3, and 5 would never be accepted as valid defenses on their own. A judge would laugh you out of court.
Some additional acceptable defenses:
6) you don’t have any evidence that actually connects me to the crime
7) you were handing out this stuff for free to begin with, how do you expect anyone to know they need to pay for it if you are handing it out for free?
Re: Re: Re:13 Hilarious
Re: Re: Re:14 Hilarious
Doesn’t matter what language you use, the base premise is not a valid defense.
Re: Re: Re:15 Hilarious
Re: Re: Re:16 Hilarious
What significant problems? It allows people, businesses, and systems to share files with increased speed and reduced bandwidth usage. As far as I know it works really well. The fact that some bad actors found a way to use it maliciously is completely and totally irrelevant.
In this case, the judge does understand this and is rightfully smacking around Malibu for abusing the law.
Re: Re: Re:17 Hilarious
Re: Re: Re:18 Hilarious
Re: Re: Re:19 Hilarious
Exactly. Everything will be abused and misused and there is nothing you can do to stop it.
How about the printing press? That’s been used to distribute copyrighted works illegally for hundreds of years! I guess we should stop using it then since it’s illegal technology. No more books for the world, nope.
Get a clue tp, your arguments are worthless nonsense.
Re: Re: Re:20 Hilarious
Also, the only way something becomes illegal tech is if the government passes a law making it illegal. Not just because some rando’s used it do something bad.
Keep dreaming, boyo.
Re: Re: Re:21 Hilarious
Re: Re: Re:22 Hilarious
You’re an ignorant idiot. That’s not how it works, nor should it be how it works.
Re: Re: Re:23 Hilarious
Re: Re: Re:24 Hilarious
So what’s the point? You said you’re professional. That must mean you get paid right? Who pays you? Why do you do it?
Re: Re: Re:25 Hilarious
Re: Re: Re:26 Hilarious
You didn’t answer my question. Who pays you? Why do you do it?
Re: Re: Re:26 Hilarious
And what a coincidence, you develop a product.
Which by your own logic is now considered illegal.
Congratulations on invalidating your entire fucking thesis statement, you bloody whackjob.
Re: Re: Re:24 Hilarious
This is why I’m a professional troll.
Well at least you admit it, and admitting to a problem is the first step.
Re: Re: Re:25 Hilarious
There’s also the fact that the dumbass demanded to be paid for a project that isn’t commercially available, yet he claims to be widely in use by the MPAA and the general public, and absolutely won’t admit what it is.
His admission that he considers Malibu Media to be “friends” is pretty fucking damning, though.
Re: Hilarious
If by that you mean are going to get absolutely slaughtered for bringing such a bogus lawsuit and vastly abusing copyright law, then yes, I agree with you. But the rest of your post is delusional and divorced from reality in the extreme.
There is no universe or reality where this is even remotely true.
Contrary to your claims, the defendant has provided ample evidence to suggest MM is abusing the law and has zero proof that the defendant did anything wrong. The judge has, rightly, recognized this as sound reasoning and logic, and coupled with MM’s other cases and history has told MM in no uncertain terms "either come up with some actual evidence of wrongdoing or I’m going to throw every rule in the book at you and I think we both know you don’t want that because you broke pretty much every rule in the book".
Re: Re: Hilarious
What AC says. tp, here’s your problem:
Except that Malibu’s biggest problem isnt proving the computer location, but they need to prove that copyright infringement actually happened (from that ip address, by certain person)
Owning the computer in question doesn’t mean that individual committed infringement. Since IP addresses are an hilariously inaccurate way of pinpointing location the case is bogus from the get-go; mine frequently announces my location as being many miles from where I actually live.
Speculative invoicing accompanied by threats is a thing; several commenters here, including That Anonymous Coward, have been treated in this way even though they never committed the infringement they were accused of.
It is most certainly not the “proper defendant’s” job to understand where the other side is coming from, their only duty is to defend themselves. Malibu are trolls, pure and simple. They deserve no special consideration.
Re: Re: Re: Hilarious
There’s also the fact that Malibu Media’s list of successful attempts at proving infringement happened at an IP address of their choosing is… embarrassingly short. Not that tp has been paying attention.
Re:
Here we are 4 years later and the defendant won the case. Sure it was a settlement, but he had Malibu’s nuts in a vice. They were DESPERATELY trying to dismiss the case.
I wonder how much the settlement cost Malibu….
Malibu Media Statistics
Since they came charging out of the gate in 2018, it would be interesting to know how their strategies have changed as well as the settlement rate for all these new cases.