from the run-away...-run-away dept
Yes, we keep seeing Judge William Alsup appear on these pages, as he keeps getting high profile tech related cases. And, while we don’t always agree with his decisions, I don’t think that anyone can argue that he isn’t careful and thorough in making sure he understands the technology involved in these cases. The most well-known example of this, of course, was the time he taught himself to program Java to understand the deeper issues in the copyright dispute over Java’s API’s (which helped him make the right call in saying API’s were not eligible for copyright protection — a ruling that was unfortunately overturned by the Federal Circuit). More recently, Judge Alsup also got some attention for demanding lessons and reading materials in how to build LiDAR systems, to understand the trade secrets fight between Uber and Waymo over their LiDAR technology. And, just as a reminder, he’s not talking about basic level stuff here:
Please keep in mind that the judge is already familiar with basic light and optics principles involving lens, such as focal lengths, the non-linear nature of focal points as a function of distance of an object from the lens, where objects get focused to on a screen behind the lens, and the use of a lens to project as well as to focus. So, most useful would be literature on adapting LiDAR to self-driving vehicles, including various strategies for positioning light-emitting diodes behind the lens for best overall effect, as well as use of a single lens to project outgoing light as well as to focus incoming reflections (other than, of course, the patents in suit). The judge wishes to learn the prior art and public domain art bearing on the patents in suit and trade secrets in suit.
Yeah. So. It was probably a good thing that, a year and a half ago, the Chief Judge in the Northern District of California, said that any new Malibu Media copyright trolling cases had to go in front of Judge Alsup. Malibu Media, of course, is the US’s biggest copyright troll, responsible for a fairly insane percentage of all the copyright infringement lawsuits filed in the US. We’ve had a ton of stories about the company and some of its fairly shady practices in copyright trolling. Malibu Media, of course, is also a sleight of hand, as it’s actually the porn company better known as X-Art. It’s also been connected to the famous “international men of mystery”, often referred to as Guardaley — a German company, that’s gone through various name changes, and seems to be behind numerous copyright trolling operations.
Either way, last year, we noted that Judge Alsup had been quick to understand what was going on with Malibu Media, and, in particular, called out the company for attempting to cut and run on any case when challenged. This is pretty typical of many copyright trolls. If the defendant in the case actually challenges anything, Malibu will often dismiss the case and run away, so as not to have to bother with defending its own legal tactics.
It appears that Alsup is getting increasingly tired of Malibu Media trying to abuse the judicial system as part of its shakedown business model. As first noted by the Fight Copyright Trolls blog, Alsup has issued an order to show cause why it should be barred from filing any more lawsuits in the district.
Specifically, Alsup is doing this in response to Malibu Media’s claims that the geolocation technology it uses, from Maxmind, is close to 100% accurate in locating where a given IP address is located. If Maxmind sounds familiar, that’s because it’s the company which was the subject of numerous stories last year about how laughably bad its geolocation tools were, including the truly horrifying story of how Maxmind would tell lots of people that various IP addresses were at a random house in Kansas, leading lots of strangers to show up there, often angry about scams or spam.
So, yeah, to then go into court and declare that Maxmind is perfect… didn’t go over too well:
In this particular case, as in each case filed in this district in October 2016, counsel for Malibu Media averred in a sworn declaration that Malibu Media used a database called ?Maxmind? to map our defendant?s IP address to a particular district in order to determine the proper venue for this action (Dkt. No. 7-6). The declaration parroted several hearsay statements about the accuracy of Maxmind from its website, but counsel also averred that in their experience in California ?Maxmind has always been 100% accurate to the state level, 100% accurate at identifying the ISP and has predicted the correct district 146 out of 147 times?
He then points to that article linked above, about the house in Kansas, and says that Malibu Media better come up with better evidence of accuracy, or that’s it for lawsuits in Northern California:
Malibu Media is hereby ordered to SHOW CAUSE at that hearing, why the Court should not bar further Malibu Media cases in this district until the accuracy of the geolocation technology is fully vetted. Malibu Media shall file a written statement, with all factual assertions supported by declarations sworn under the penalty of perjury by MAY 16 AT NOON.
Oh, and since Malibu Media has a history of cutting and running, he added this kicker:
To be clear, this order applies even if Malibu Media voluntarily dismisses this action.
In other words: don’t run and hide. It won’t work.
The order also highlights that Alsup is well aware of how the copyright trolling scam works, quoting another judicial hero in the fight against copyright trolls, Judge Otis Wright, who famously was the first to call out Prenda, and kicked off a series of events that resulted in Prenda’s two principles getting indicted.
Here, Judge Alsup quotes Judge Wright, calling out Malibu Media as well:
The Court is familiar with lawsuits like this one. These lawsuits run a common theme: plaintiff owns a copyright to a pornographic movie; plaintiff sues numerous John Does in a single action for using BitTorrent to pirate the movie; plaintiff subpoenas the ISPs to obtain the identities of these Does; if successful, plaintiff will send out demand letters to the Does; because of embarrassment, many Does will send back a nuisance-value check to the plaintiff. The cost to the plaintiff: a single filing fee, a bit of discovery, and stamps. The rewards: potentially hundreds of thousands of dollars. Rarely do these cases reach the merits.
The federal courts are not cogs in a plaintiff?s copyright-enforcement business model. The Court will not idly watch what is essentially an extortion scheme, for a case that plaintiff has no intention of bringing to trial.
It’s really quite astounding that operations like Malibu Media have been able to keep this up this long. It eventually crashed and burned for Prenda, and it looks like Malibu Media may be facing some more significant challenges in the near future as well.