We've talked a lot about massive copyright trolling operation, Malibu Media
(which is also known for providing porn under the name xArt). In some other cases, it's been revealed that Malibu Media is one of many operations that appear to be little more than a copyright delivery system for a series of German companies
that are behind the scenes of almost every major copyright trolling operation these days. The company is also somewhat infamous for its shady practices and the way in which it files many questionable lawsuits -- including the use of "Exhibit C"
-- totally unrelated films that it claims the accused also downloaded illegally, but over which Malibu Media has no copyright claims. That exhibit clearly served only to try to pressure individuals into settling, so there wouldn't be a public court document insinuating a list of embarrassing films had been downloaded.
Its latest move seems to go seriously over the line in yet another effort to try to force defendants to pay up and settle. In this case, involving a "John Doe" defendant, the court had been clear that any documents involving the name of the defendant needed to be filed under seal. That came after the court had rejected the defendant's attempt to have the whole subpoena thrown out, but was clearly on to Malibu Media's usual tricks pressuring people into settling. As summarized in a new filing from Booth Sweet
(the lawyers for the defendant), the court had been abundantly clear that Malibu Media was not to publicly name the defendant:
Here, the Order was sent by the Court to the Plaintiff. The Court's language could not have
been more clear.
“If the summons and its return disclose the Defenan[d]t’s name and identifying
information, Defendant shall file the same under seal.”
Nor was the intent of the Court’s Order lost upon the Plaintiff. In its motion to file its
summons and return of service, Plaintiff specifically noted:
“To comply with the Court’s Protective Order [CM/ECF 20], Plaintiff seeks leave
of Court to file its proposed summons and affidavit of service under seal.”
In approving the Plaintiff’s request to file its summons and return of service under seal, the
Court once again took pains to establish
the following procedure to balance Defendant's privacy interests with the
presumption of open judicial proceedings. Simultaneously with filing its proposed
summons under seal, Plaintiff shall also file a Reference List and an amended
complaint. The Reference List, which shall be filed under seal, must contain
Defendant's name and any other identifying information that Plaintiff deems
necessary to the prosecution of its case, as well as an appropriate identifier that
uniquely corresponds to each item listed. See Fed. R. Civ. P. 5.2(g). The amended
complaint and all subsequent filings shall be publicly filed and must refer to
Defendant only as John Doe and use the identifier provided in the Reference List for
other identifying information....
So what do you think happened? Well, first, as has happened in many other Malibu Media cases, the company and its trolling lawyers failed to serve the defendant, so Booth Sweet filed for a motion to dismiss. In response... Malibu Media filed another filing (a "summons and reference list") that was not redacted and not under seal. And did so at a time that made it difficult to fix in a timely manner:
On March 13, 2015, Plaintiff, in violation of the Court’s repeated Orders, filed an unredacted
summons and reference list with John Doe’s name and address plainly visible. See Docs. 24 & 25. By
choosing to file these documents at 8:00 PM on a Friday evening, Plaintiff intentionally chose a time
when it would be difficult to correct, and the embarrassment alone might cause John Doe to seek a
non-trial disposition just to end the matter. More so, the documents are dated March 12, 2015, further
compounding the inference that Plaintiff intentionally waited until Friday evening to file them.
Furthermore, Booth Sweet notes that Malibu Media pulled this same damn trick in multiple other cases as well, including another one done late on a Friday evening:
Malibu Media v. John Does 1-14, No. 12-cv-0764-BAH, ECF No. 35 (D.D.C. 2012)
Plaintiff filed an un-redacted first amended complaint and summons, both identifying the
John Doe there by name, in express contravention of the Court’s protective order. Before a
sanctions motion was filed, the matter was dismissed due to Plaintiff’s failure to timely serve
Malibu Media v. John Does 1-14, No. 12-cv-2084, ECF #37 (E.D. Pa. Nov. 1, 2012)
Plaintiff filed un-redacted notices “in the other cases affected by the October 3
Order, naming all the Doe defendants” on a Friday evening. Id. at n.1.
Malibu Media v. John Does 1- 14, No. 12-cv-263, ECF #48 (N.D. Ind. Dec. 14, 2012)
Plaintiff’s motion to strike un-redacted complaint it filed in violation of court order,
blaming error on paralegal.
In fact, Booth Sweet notes that not only does the unredacted filing late on a Friday seem questionable, the entire filing is questionable as it is entirely inappropriate here:
Plaintiff’s deadline to serve the Defendant was February 28. To date, no extension to
effectuate service has been granted—which begs the question why these documents were even filed
in the first place. These documents are neither necessary at this point in the litigation nor relevant to
opposing Defendant’s pending motion to dismiss. However, they are essential to a Plaintiff, who
unable to obtain a quick settlement, is all to happy to act out of spite.
It really is incredible how frequently we see this kind of gamesmanship in copyright trolling cases. I guess when you look on the federal judicial system as a system worth gaming for extortionate payouts from individuals, it shouldn't be that surprising that the lawyers would also look to game other aspects of the system as well.
The judge in the case, Judge Timothy Black, has wasted little time in ordering Malibu Media's lawyer, Yousef Faroniya, to explain why
he shouldn't be sanctioned for clearly disobeying the court's orders:
Defendant moves the Court to order Plaintiff and its counsel to show cause why
they should not be sanctioned or held in contempt for publicly filing Defendant's name
and address in contravention of two Court orders directing Plaintiff to file this
information under seal. For the reasons set forth in Defendant's motion, the Court finds
that Defendant has established a prima facie case that Plaintiff and its counsel "violated a
definite and specific order of the court requiring him to perform or refrain from
performing a particular act or acts with knowledge of the court's order." ... Accordingly, Plaintiff and its attorney Yousef Faroniya are ORDERED to
show cause in writing by March 20, 2015 at 5:00 p.m. why they should not be
sanctioned or held in contempt for publicly filing Defendant's name and address in
violation of the Court's Orders dated January 21, 2015 and February 26, 2015.
Defendant may file a response by March 24, 2015 at 5:00 p.m. The Court will set this
matter for a hearing, if appropriate, after receipt of the written responses. The Clerk is
DIRECTED to withhold issuance of the summons until this matter is resolved.
And, in a footnote, the judge makes it clear that Faroniya "shall specifically address Defendant's allegation that substantially similar conduct has occurred in other cases involving Plaintiff."
Given how frequently we see this kind of gamesmanship, it's still somewhat amazing that Malibu Media and its lawyers haven't yet collapsed into a Prenda- or Righthaven-style mess.